Aim and content of the Directive

The Pregnant Workers Directive is one of the ‘daughter Directives’ enacted as a follow-up to the 1989 Framework Directive on Health and Safety. While the Framework Directive introduced a general system of occupational safety and health, based on risk assessments, preventive measures, and the collaboration of employers, employee representatives and occupational physicians, the focus of the Pregnant Workers Directive is on new or expectant mothers, that is, on a particularly vulnerable group of workers who face specific risks at the workplace. The general aim of the Directive is ‘to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding’ (Article 1).

To fulfil this aim, the Directive includes a set of fourteen compulsory minimum standards. These can be divided into standards relating to occupational health and safety in a narrowsense, and into provisions belonging to the realm of employment rights more generally understood.

So far as health and safety issues are concerned, the Directive provides the following.

1. Employers have to evaluate the potential risks to new and expectant mothers working in their establishments, taking into account a list of agents, processes and working conditions specified in the first annex to the Directive.

2. Female workers and/or their representatives must be informed about the results of this assessment.

The preceding chapters have dealt with the compulsory reforms related to our six EU Directives. However, the domestic impact of EU policies is not necessarily confined to such obligatory adaptations. Member states may use the transposition process to push through voluntary reforms that go beyond the minimum level required by European Directives. On the one hand, this can be a reaction to European soft law and, in fact, recent social policy Directives have included a considerable number of concrete but legally non-binding recommendations. On the other hand, member states might also decide to surpass the level of the EU's minimum standards (say, by creating a parental leave scheme which offers six instead of the required three months of leave).

From an abstract point of view, three different logics of treating the binding and non-binding parts of a Directive can be specified: minimalism, maximalism and alogic of domestic politics (see Table 10.1). The most frequently discussed assumption in the competitiveness-oriented literature is that the reaction of member states to potentially costly EU policies is driven by a logic of minimalism. According to this view, only binding law has the potential to harmonise the different domestic working conditions. In the absence of obligation, no additional costs to the national enterprises or the administration would be accepted in response to European policies.

This chapter extends the study of Europeanisation from the sphere of policy content to policy-making patterns, specifically to public–private relations. Since the beginning of the 1990s, remarkable developments have taken place in EU social policy at this procedural level. Since this specific style of public–private co-operation is restricted to one policy area only, we prefer not to speak about ‘Euro-corporatism’ (Gorges 1996), but rather about a ‘corporatist policy community’ (Falkner 1998).

The EC Treaty's social provisions (see Articles 136–48) now contain three layers of social partner participation in the policy process. First, a member state may entrust management and labour, at their joint request, with the implementation of social policy Directives. Secondly, the European Commission now has a legal obligation to consult both sides of industry before submitting social policy proposals. And thirdly, but most importantly, management and labour may, on the occasion of such consultation, inform the Commission of their wish to conclude social partner agreements instead of proceeding with traditional EU legislation. Such agreements may, at the joint request of the signatory parties, be implemented by a Council decision based on a proposal from the European Commission. Thus, since the 1990s, the social partners have been formal co-actors in EU policy-making.

The member states of the European union are characterised by deeply rooted systems of public–private interaction that exemplify their respective processes of public policy-making.

Constructing a typology: methodological and practical background

It has been mentioned in the previous chapters that the considerations of domestic politics have been underrated in recent writing on compliance with EU law. The great importance of national preferences and ideology for the implementation performance of many countries is one major finding of this study. However, this is not a single overriding factor which determines the compliance performance of member states and could thus serve as a safe anchor for predicting the success or failure of future implementation cases in all of our fifteen countries. Therefore, it should not be read as a new over-generalised theory for explaining the implementation of EU law. In fact, an untidy overall picture emerges once the manifold hypotheses we derived from the different literatures have been discussed: no causal condition pre-supposed by existing theories is able to explain our empirical observations. This suggests, once again, that the search for law-like generalisations and for simple isolated causes that could explain complex empirical phenomena is futile (see, for example, Scharpf 2002b).

Classic factors from the comparative welfare state literature do not help either. Most importantly, there is no direct correlation between social expenses and compliance records. For example, the UK ranks fourth when it comes to delays in transposing our six Directives, but is on the lower end of the scale of social expenses in Europe.

The implementation of EU Directives is but one example of the broader phenomenon of ‘Europeanisation’. This term has become a catchword in recent political science literature, referring to a number of slightly different phenomena that are located on at least four different levels. First, the term is a times used to refer to the EU-level development of policies and/or policy networks (e.g. Risse et al. 2001). Second, it can mean the reactions in domestic systems to top-down influences from the EU level, be they directly induced by EU law or indirectly by European policies such as the Maastricht convergence criteria (e.g. Ladrech 1994; see also Radaelli 2000). Third, Europeanisation is used to point out changes at the national level induced by transnational influences (Kohler-Koch 2000a). Finally, some authors take a very broad view and include the sum of all of these notions/levels in their understanding of Europeanisation (e.g. Borzel 1999; Falkner 2000b). For the purpose of this book, we shall adopt the top-down perspective as referred to by Robert Ladrech, andwe will try to isolate, as far as possible, the effects stemming from EU politics and (social) policy from other aspects included in some of the concepts mentioned above.

Research on Europeanisation – even if understood in this comparatively more narrow sense – targets a broad and complex phenomenon since all parts of the domestic political system may be affected (i.e. policies, politics, and polities).

It is obvious and has been argued throughout the book that the effect of EU social policy Directives depends on timely and correct implementation in the member states. This chapter will briefly outline which instruments the EU Commission can use to make non-compliant member states fulfil their European duties. The aimis to assess the phenomenon empirically and to confront the occurrence of relevant failures with the Commission's enforcement policy.

State of the art

Within the field of research on the EU, a number of authors have dealt with the question of how well member states follow their commitment to implement EU law. Generally speaking, these studies can be divided along two lines, i.e. the approach taken and the data used. Thus most of the literature could easily be sorted into a four-box matrix, where the x-axis distinguishes between quantitative and qualitative studies, and the y-axis differentiates between cases where the initiative lies with an individual complainant or with the European Commission.

Aim and content of the Directive

The general aim of the Working Time Directive is to improve the health and safety of workers by laying down minimum standards for the organisation of working time (Article 2 of the Directive). The Directive is based on a wide interpretation of occupational health and safety which assumes that working long hours is harmful to workers’ health and thus has to be limited.

The Working Time Directive applies in principle to both public and private sectors. It includes twelve compulsory minimum standards.

1. As a general rule, workers may not work longer than forty-eight hours per week, averaged out over a period of four months.

2. Every worker has to be granted a consecutive daily rest period of eleven hours.

3. Every worker has to be granted a consecutive weekly rest period of thirty-five hours, averaged out over a period of two weeks.

4. Every worker has to be granted a break if the working day is longer than six hours.

5. Moreover, employees are entitled to at least four weeks paid annual leave.

6. The four weeks' paid annual leave may not be replaced by an allowance.

7. Night workers may not work more than eight hours per day (averaged out over aperiod to be defined by national law or collective agreement), while night workers whose job involves ‘special hazards or heavy physical or mental strain’(Article 8) must work no more than an absolute limit of eight hours per day.

Policy-making within the multi-state polity of the European Union is an intricate affair. Given heterogeneous policy legacies in the member states as well asthe diverse preferences of national governments and other domestic actors, one-size-fits-all solutions are often neither politically feasible nor normatively desirable. A certain amount of flexibility and variation is thus needed in order to find solutions that are applicable to all member states. In this context, recent EU policies follow a new regulatory method based oncompulsory minimum standards, possibilities for derogations and non-binding recommendations, which tries to combine both ‘community and autonomy’ (Scharpf 1994). However, is a flexible governance style necessarily a good thing? Could it even be a dangerous development? Focusing on the field of EU social policy, we offer the first in-depth survey of voluntarist EU policies as set forth in different EU Directives, on the basis of empirical research into the impact of such steering efforts in the EU's multi-level system.

EU social policy: a successful combination of community and autonomy, or potentially dangerous voluntarism?

EU social policy is confronted with a ‘regulatory conundrum’ (Rhodes 1995). The disparate social systems and standards of the member states do not allow (at least in any practical way) for detailed harmonisation in the sense of simply equalising social standards via EU law ‘from above’. At the same time, liberalisation of the economy in the internal market has increased competitive pressures on the national systems of social and labour law.

Aim and content of the Directive

The Parental Leave Directive was the first EU-level social policy measure tobe based on a framework agreement by the major European federations of management and labour (UNICE, CEEP, and ETUC). The Parental Leave Directive did no more than give general legal force to the social partners pact. None of the latter's substantive provisions was modified, which is best illustrated by the fact that the agreement was attached, unchanged, to the Directive.

The general aim of the Directive is, according to the preamble preceding the main text of the social partners agreement, ‘to set out minimum requirements on parental leave and time off from work on grounds of force majeure, as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and women’. The purpose of the agreement is therefore to enable working parents to take a certain amount of time off from work to take care of their children. In this context, particular emphasis is put on enabling and encouraging men to take on a greater share of childcare responsibilities.

The compulsory minimum standards of the Directive thus encompass seven provisions:

1. workers must be granted the right to at least three months' parental leave;

2. this entitlement is to be an individual right of both male and female workers;

3. parental leave has to be provided not only for parents with children by birth, but also for those who have adopted a child;

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.