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Obstinate and Inefficient: Why Member States Do Not Comply With European
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Article  in  Comparative Political Studies · September 2010

DOI: 10.1177/0010414010376910

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376910 CPS43

Comparative Political Studies

43(11) 1363–1390
Obstinate and © The Author(s) 2010
Reprints and permission: http://www.
Inefficient: Why sagepub.com/journalsPermissions.nav
DOI: 10.1177/0010414010376910
Member States Do http://cps.sagepub.com

Not Comply With

European Law

Tanja A. Börzel,1 Tobias Hofmann,2

Diana Panke,3 and Carina Sprungk1

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

1
Freie Universität Berlin, Germany
2
College of William & Mary, Williamsburg,VA, USA
3
University College Dublin, Dublin, Ireland

Corresponding Author:
Tanja A. Börzel, Freie Universität Berlin, Otto Suhr Institute for Political Science, Ihnestr. 22,
14195 Berlin, Germany
Email: boerzel@zedat.fu-berlin.de
1364 Comparative Political Studies 43(11)

compliant than Italy, which commands similar political power but whose
bureaucracy is far less efficient.

Keywords
compliance, enforcement, management, legitimacy, European Union

One of the major questions in the research on international institutions has

been “why governments, seeking to promote their own interests, ever comply
with the rules of international regimes when they view these rules as in con-
flict with . . . their myopic self-interest” (Keohane, 1984, p. 99). Although
realists argue that states simply do not comply if the costs of a rule are too
high, rational institutionalists point to the role of international regimes and
organizations, whose monitoring, sanctioning, and adjudication mechanisms
increase the costs of noncompliance. By contrast to these enforcement theo-
ries, the management approach assumes that noncompliance is involuntary
and results from a lack of resources and, therefore, focuses on capacity build-
ing. Finally, social constructivists stress legitimacy, socialization, and norm
internalization through processes of social learning and persuasion as expla-
nations for compliance. Although these three approaches provide different
explanations for why states comply, they have paid less attention to the ques-
tion of why some states comply better than others.
Member states of the European Union (EU) vary in how often they violate
European law, but none of the three approaches can sufficiently explain why
countries as diverse as Greece, Italy, France, and Belgium violate EU law
more frequently than Denmark, the Netherlands, the United Kingdom, and
Luxembourg, whose compliance records are exemplary. Against this back-
ground, we inquire into why some states are more compliant with international
norms and rules than others. The EU is an ideal case to explore this question.
As “masters of the treaties,” the member states still have a significant say in
the norms and rules with which they have to comply. At the same time, EU
institutions entail highly legalized monitoring, adjudication, and sanctioning
mechanisms. Although all three theoretical approaches outlined above should
therefore expect a higher level of compliance in the EU as compared to other
international organizations and regimes, member states vary significantly in
the degree to which they obey EU law.
The article proceeds as follows. After outlining the empirical puzzle, we
review three prominent compliance approaches in the international relations
and European studies literature. For each of the three approaches, we develop
Börzel et al. 1365

a set of hypotheses. Although the literature often treats them as competing or

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

Mapping Member State Noncompliance

in the EU
Our data on noncompliance with European law, which we discuss in the
operationalization and data section below, show substantial variation between
and within member states (Figure 1). Although all member states have to
comply with the same (number of) legal acts, Italy, for instance, violates EU
law more than 10 times more frequently than Denmark (almost 50 vs. only
4 violations per year). Overall, the member states can be divided into leaders,
1366 Comparative Political Studies 43(11)

Annual Violations (Reasoned Opinions)

80
60
40
20
0

m
s
k

e
nd
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ly
g

ce
ga
nd

an
ar

ec
ai
ur

Ita
do

iu

an
la
Sp

tu
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bo
rla

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lg
Ire
ng

Fr
en

Be
er

G
Po
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he

Ki
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G
xe
et

Lu
N

te
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Figure 1. Annual violations by member state, 1986–1999

The box and whisker plots depict the lowest and largest annual number of
reasoned opinions, the lower and upper quartile, and the median for each of the
EU 12 in the 1986 to 1999 period. We limit Figure 1 to this largest balanced subset
of our EU 15 1978 to 1999 data to prevent bias because of different accession
dates, length of membership, and the substantial increase in EU legislation over time.
The individual plots are sorted from left to right by the average number of annual
violations per member state.

laggards, and the middle field. Denmark, the Netherlands, and the United
Kingdom are good compliers and seldom violate European law. By contrast,
Belgium, France, and the Southern European countries (with the notable
exception of Spain) considerably lag behind. Analyzing this pattern more
closely, we also find that it is very stable over time, with Denmark and the
Netherlands having consistently much better and Belgium, France, Greece,
and Italy worse noncompliance records than the EU average.
The distribution of noncompliance between member states is puzzling
because none of the prominent compliance approaches provides an explana-
tion that systematically accounts for the observed variance. Power-based
theories have to ask themselves why France and Italy yield similar economic
and political power in the EU as Germany and the United Kingdom but are
much less compliant. This becomes even more puzzling for management
theories because France and Italy comply as badly as or even worse than
Greece and Portugal, which are the two poorest countries in the EU 12.
Börzel et al. 1367

Constructivists have a hard time to understand why EU-skeptical countries

such as the United Kingdom and Denmark comply much better with
European law than states that are highly supportive of European integration,
such as Italy, Portugal, and Belgium. Institutionalists generally have diffi-
culties in accounting for variation between countries because the level of
legalization is the same for all states within an international institution.
Likewise, monitoring and sanctioning mechanisms should affect the cost–
benefit calculations of states in an equal way. Variance is much more
expected between international institutions if they differ in their degree of
obligation, delegation, and precision (Keohane, Moravcsik, & Slaughter,
2000). Of course, the costs of (non)compliance may vary across countries.
But then we need an explanation for why some states face higher costs than
others, something institutionalist theories usually do not provide. As we see
below, combining institutionalist reasoning with a power-based enforcement
approach is one way to solve this problem.

Three Prominent Compliance Approaches

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

Enforcement
Enforcement approaches assume that states choose to violate international
norms and rules because they are not willing to bear the costs of compli-
ance. From this rationalist perspective, noncompliance can be prevented
only by increasing the costs of noncompliance (Dorn & Fulton, 1997;
Downs, Rocke, & Barsoom, 1996; Martin, 1992). Establishing institutional-
ized monitoring and sanctioning mechanisms can alter the cost–benefit
calculations of states as the likelihood of being detected and punished
increases the anticipated costs of noncompliance (Fearon, 1998; Martin,
1992). However, state power can significantly mitigate the extent to which
1368 Comparative Political Studies 43(11)

states are affected by and sensitive to compliance costs (Garrett, Kelemen,

& Schulz, 1998; Horne & Cutlip, 2002).
The power of obstinacy: Power matters at the enforcement stage. Following
the argument of Keohane and Nye (1977) on power and interdependence,
states are more sensitive to reputational and material costs imposed by others
if they have less political or economic power and are more dependent on
future goodwill and cooperation. Unlike weaker states, powerful states can
afford to be more resistant to external pressures because they have more alter-
natives to cooperation with a particular partner and can more easily pay for
reputational or material damages. With regard to the complete and timely
transposition and implementation of European law, we would then expect that
high political and economic weight allows a state to be obstinate (similar to
Martin, 1992). Even if a powerful state loses reputation vis-à-vis the Euro-
pean Commission or other member states, its political and economic power
safeguards its influence in the EU (Thomson, Stokman, König, & Achen,
2006). Smaller and less powerful EU member states, by contrast, are more
sensitive to external constraints imposed by material and immaterial sanc-
tions. Not only are they less able to bear the costs of the judicial procedure
before the European Court of Justice (ECJ) and are also more threatened by
eventual financial sanctions, but also a reputation as good citizens and reli-
able partners is of particular importance to them as they cannot rely on their
share of votes in the EU decision-making procedures or the importance of
their domestic markets to other member states to influence EU policies.
Hence, the obstinacy variant of the enforcement approach predicts a positive
relation between the power of a state and its noncompliance record, and we
can hypothesize that more powerful states violate European law more often
than weaker states because they are less sensitive to the costs imposed by
material and ideational sanctions.
The power of assertiveness: Power matters at the decision-making stage. The
power of a state can also deploy an impact at the decision-making stage. The
political and economic weight of a member state is closely related to its asser-
tiveness, that is, its ability to shape legal acts according to its preferences
(Fearon, 1998; Giuliani, 2003; Thomson et al., 2006). The extent to which a
state has managed to attain its goals during negotiations determines the costs,
which a state has to bear to comply, and influences a state’s willingness to
comply with a European law ex post. Hence, a second enforcement hypothesis
expects that more powerful states violate European law less often than weaker
states because they are able to decrease the costs of compliance by shaping
European law according to their preferences.
Börzel et al. 1369

Management
Unlike the enforcement approach, the management school of thought assumes
that noncompliance is involuntary. Even if states are willing to fully act in
accordance with international norms, they are prevented from doing so if the
preconditions that enable states to comply are absent. The literature has identi-
fied three sources of such involuntary noncompliance: lacking or insufficient
state capacities, ambiguous definitions of norms, and inadequate timetables
within which compliance has to be achieved (Chayes & Chayes, 1993; Chayes,
Chayes, & Mitchell, 1998; Haas, 1998; Jacobsen & Weiss Brown, 1995; Young,
1992). Only state capacities can account for cross-country variation because
the other variables are legal act specific.
The concept of state capacity is not used uniformly in the literature.
Resource-centered approaches define capacity as a state’s ability to act, that
is, the sum of its legal authority and financial, military, and human resources
(Haas, 1998; Przeworski, 1990; Simmons, 1998). Neoinstitutionalist approaches,
by contrast, argue that the domestic institutional structure influences the
degree of a state’s capacity to act and its autonomy to make decisions (Evans,
1995; Evans, Rueschemeyer, & Skocpol, 1985; Katzenstein, 1978). Thereby,
domestic veto players come to the fore, blocking the implementation of inter-
national rules because of the costs they have to (co)bear (Haverland, 2000;
Putnam, 1988). A large number of veto players reduces the capacity of a state
to make the necessary changes to the status quo for the implementation of
costly rules (Alesina & Rosenthal, 1995; Linos, 2007; Tsebelis, 2002). To do
justice to both resource-centered and neoinstitutionalist arguments, we dif-
ferentiate between the government autonomy and the government capacity of
states. Although government autonomy refers to institutional and partisan veto
players (and is higher the lower the number of veto players is), government
capacity is geared to the financial endowment of states and their human
resources. Yet even if a state has sufficient resources, its administration may
still have difficulties in pooling and coordinating them, particularly if the
required resources are dispersed among various public agencies (e.g., minis-
tries) and levels of government (Egeberg, 1999; Linos, 2007; Mbaye, 2001).
We therefore distinguish between two components of government capacity:
resource endowment and the efficiency of a state’s bureaucracy to mobilize
and channel resources into the compliance process. Italy and France are
examples where the two components of government capacity diverge. Both
command more resources than most of the other member states. Yet they are
both constrained by relatively inefficient bureaucracies and serious problems
1370 Comparative Political Studies 43(11)

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

Legitimacy
Constructivists draw on the logic of appropriateness to explain compliance.
They assume that states are socialized into the norms and rules of international
institutions. States comply out of a normative belief that a rule or institution
ought to be obeyed rather than because it suits their instrumental self-interests.
This sense of moral obligation is a function of the legitimacy of the rules them-
selves or their sources (Checkel, 2001; Hurd, 1999). There are several ways
that legitimacy can be generated (cf. Dworkin, 1986; Finnemore & Sikkink,
1998; Franck, 1990; Hurrell, 1995). Because we are concerned with the expla-
nation of cross-country variation, we focus on member states’ rule of law cul-
ture and their support for the EU as a rule-setting institution.
Domestic culture of law-abidingness and support for the rule of law. Legal
sociological studies refer to the relation between national legal cultures and
states’ inclinations to comply with national norms (Gibson & Caldeira,
1996; Jacob, Blankenburg, Kritzer, Provine, & Sanders, 1996). Legal cul-
tures comprise three elements: the characteristics of legal awareness, gen-
eral attitudes toward the supremacy of law, and general attitudes toward the
judicial system and its values (Gibson & Caldeira, 1996). In this perspec-
tive, the degree of compliance correlates with the extent to which rule
addressees accept the legitimacy of the rule of law and consider compliance
with legal norms as demanded by a domestic logic of appropriateness. The
acceptance of a rule and the subsequent inclination to comply with it result
from the diffuse support for lawmaking as a legitimate means to ensuring
political order in a community (Easton, 1965). Consequently, even costly
rules will principally be complied with. Although this argument was devel-
oped for compliance with domestic laws, it should also apply to interna-
tional norms that constitute law. This is particularly true for European law,
which is the law of the land because of its supremacy and direct effect. The
Börzel et al. 1371

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

Toward an Integration of Approaches

So far we have treated the three compliance approaches—enforcement, man-
agement, and legitimacy—as alternative or competing explanations of varia-
tion in noncompliance between EU member states. However, we already
indicated that none of these prominent approaches alone can sufficiently
explain why some states violate EU law more often than others. Therefore, we
argue that the approaches can and indeed need to be integrated to account for
the empirical pattern that we observe. As some of the explanatory variables of
the three approaches are causally connected, they condition their respective
effects on noncompliance. Their interaction reinforces or undermines their
respective influences, and they combine into more than just the sum of their
individual effects.
Power and capacity. Management and enforcement approaches can interact
because differences in capacity affect the cost sensitivity of states concerning
noncompliance decisions. Although powerful member states can afford to
resist enforcement pressures by the European Commission, those with high
capacities will less frequently choose to violate European law because they
can more easily afford to bear the costs of compliance than their less resource-
ful and inefficient counterparts that lack the capacity to comply. Hence, we
hypothesize that the positive effect of the power of obstinacy on the number
of violations of European law is reduced with increasing capacity. Such a
relation suggests a negative interaction effect of power and capacity on non-
compliance as member states’ propensity to resist enforcement pressures is
“undermined” by their capacity to comply.
1372 Comparative Political Studies 43(11)

Government capacity may also reinforce the negative effect of the power
of assertiveness on noncompliance as it should put member states in a better
position to make effective use of their political power. Therefore, we hypoth-
esize that the negative effect of the power of assertiveness on the number of
violations of European law is reinforced with increasing capacity. With respect
to our empirical analysis, we expect to find a negative interaction effect, which
is (ostensibly) similar to the interaction effect of the power of obstinacy and
capacity discussed above.
Capacity and legitimacy. The conditioning effect of capacity can also apply
to the relation between legitimacy and (non)compliance as actors, who are
driven by a normative logic of appropriateness, need just as much capacity to
do what is socially accepted as actors, whose choices are guided by an instru-
mental logic of cost–benefit calculations. Therefore, we can hypothesize that
states, which have high degrees of government capacity, should be particu-
larly well equipped to comply with laws they intrinsically value and/or that
were made by institutions they support. This implies a positive interaction
effect of government capacity and legitimacy with respect to compliance, and
we should be able to observe that the negative effect of support for the rule of
law and the EU institutions on the number of violations of European law is
reinforced with increasing capacity.
Power and legitimacy. The combination of enforcement and legitimacy
approaches might appear problematic because the approaches are based on
different theories of social action. Attempts to integrate rationalist and con-
structivist reasoning focus on the scope of conditions for the two different
logics of social action (Checkel, 2001; Risse, Ropp, & Sikkink, 1999). In a
similar vein, we argue that states that have power can do as they please, but
what pleases them may well be defined by a normative logic that makes com-
pliance the socially expected and accepted behavior—if their population is
supportive of the rule of law and the rule-setting institution, respectively.
Therefore, we expect that the positive effect of the power of obstinacy on the
number of violations of European law is reduced with increasing support for
the rule of law and the EU.
Finally, there may also be an interaction effect between the power of asser-
tiveness and legitimacy. With increasing support for the rule of law, the inclina-
tion of governments to exert the power of assertiveness increases because high
support for the rule of law at the domestic level demands compliance with
international laws, even if they are costly. Therefore, we expect that the negative
effect of the power of assertiveness on the number of violations of European law
is reinforced with increasing support for the rule of law.
Börzel et al. 1373

Operationalization and Data

Infringement Proceedings as a Measure of Noncompliance
Studies on compliance with international norms and rules face the method-
ological challenge of measuring their dependent variable. Many have devel-
oped their own assessment criteria and collected the empirical information
in laborious case studies (e.g., Falkner, Treib, Hartlapp, & Leiber, 2005;
Finnemore & Sikkink, 1998; Mitchell, 2003). Others have drawn on statisti-
cal data provided by the monitoring bodies of international regimes and
organizations (e.g., Linos, 2007; Perkins & Neumayer, 2007; Reinhardt,
2001). As in any other international organization, member states have to
transpose and implement European law into their domestic legal orders. In
principle, member states can violate European law in three different ways.
They can fail to notify the European Commission of the national measures
taken to legally implement directives or regulations in due time (notifica-
tion failure), they can incorrectly and incompletely transpose European law
(incorrect transposition), or they can incompletely implement it (incorrect
implementation). Regardless of the type of violation at stake, Article 226
ECT entitles the European Commission to take legal action against member
states suspected of violating European law. The infringement proceedings con-
sist of several stages. The first two stages, suspected violations (complaints,
petitions, etc.) and formal letters, are considered unofficial. The official pro-
ceedings (Article 226 ECT) start when the European Commission issues a
reasoned opinion and ends with a ruling of the ECJ. If member states still
refuse to comply, the Commission can open new proceedings (Article 228
ECT). Article 228 ECT proceedings consist of the same stages as Article
226 ECT proceedings, but the ECJ has the right to impose financial penal-
ties (Tallberg, 2002).
For our analysis, we draw on the European Commission’s very own infringe-
ment database, which has been made available to researchers for the very first
time.2 Unlike the data published in the Commission’s Annual Reports on
Monitoring the Application of Community Law, this comprehensive data-
base contains detailed information on the legal basis (CELEX number), type
of violation, and the stage reached in the proceedings of all the more than
6,300 individual infringement cases in which the European Commission issued
a reasoned opinion to member states between 1978 and 1999.3 We use these
reasoned opinions to construct our dependent variable not only because of the
depth of information about this first official stage of the infringement proceed-
ings but also because reasoned opinions concern the more serious cases of
1374 Comparative Political Studies 43(11)

noncompliance, that is, issues that could not be solved through informal nego-
tiations at the two previous stages.
Relying on infringement proceedings as an indicator for noncompliance
with European law is not without problems though. There are good reasons
to question whether infringement proceedings qualify as a valid and reli-
able indicator of compliance failure and constitute a representative sample
of all the violations that occur. First, for reasons of limited resources, the
European Commission is not capable of detecting and legally pursuing all
instances of noncompliance with European law. Infringement proceedings
present only a fraction of all instances of noncompliance, and the 6,300
cases might be only the tip of the noncompliance iceberg (Falkner et al.,
2005). Moreover, the infringement sample could be biased because the
Commission depends heavily on the member states reporting back on their
implementation activities, costly and time-consuming consultancy reports,
and information from citizens, interest groups, and companies. Yet there
is no indication that the limited detection of noncompliance systemati-
cally biases infringement data toward certain member states. We have been
conducting an expert survey among the legal experts of the EU 15 member
states’ permanent representations to the EU. This survey analyzes the extent
to which the infringement data collected by the European Commission
reflect the member states’ perspective and assesses whether and where
national experts perceive a bias in the data.4 All but one Committee of
Permanent Representatives expert replied, giving us a response rate of
93.3%. The most important findings are that more than two thirds of the
respondents do not think that the infringement data contain any system-
atic bias toward certain member states. What is more, the experts’ assess-
ment of which member states violate EU law most and least is in line with
the Commission’s infringement data, with France, Greece, and Italy being
considered the main laggards and Denmark, Finland, and Sweden the com-
pliance leaders. This strengthens our confidence that our database does not
contain a systematic bias.
One final concern is the number of European legal acts in force that can
potentially be violated, which has more than doubled from fewer than 5,000
to almost 10,000 in the 1978 to 1999 period. To control for the substantial
increase in opportunities for noncompliance over time, we use a relative rather
than an absolute measure of noncompliance as the dependent variable in our
statistical analysis. The reasoned opinions variable puts the number of rea-
soned opinions sent to a member state in a given year in relation to the number
of European legal acts in force in that year.5
Börzel et al. 1375

Operationalizing Power, Capacity, and Legitimacy

Before we can empirically test the effects of power, capacity, and legitimacy
on the frequency of noncompliance, we also need to discuss the opera-
tionalization of the relevant covariates. We use two indicators that account
for different aspects of power—economic size and EU-specific political
power—to test the influence of obstinacy on noncompliance. Gross domes-
tic product (GDP) in trillion constant 1995 U.S. dollars (World Bank, 2005)
is a commonly used proxy for economic power (Martin, 1992; Moravcsik,
1998; Steinberg, 2002). It influences the sensitivity toward material costs of
financial penalties or the withholding of EU subsidies. Direct EU-specific
political power is more relevant for reputational costs. Member states with
significant voting power cannot be ignored in EU decision making, even if
they may have lost credibility by not complying with previously agreed on
rules. Thus, we use the proportion of times when a member state is pivotal
(and can, thus, turn a losing into a winning coalition) under qualified major-
ity voting in the Council of Ministers (Shapley Shubik Index) as an indicator
of EU-specific political power (Rodden, 2002; Shapley & Shubik, 1954).
This indicator also operationalizes the power of assertiveness. The power to
shape EU rules is strongly mitigated by the highly institutionalized context
of EU decision making and the need for coalition building (Thomson et al.,
2006), as a result of which such power resources as military capabilities do
not carry much weight. Population is relevant but is captured by both GDP
and the Shapley Shubik Index.
To test the hypotheses we derived from the management approach, we
need indicators for both government autonomy and capacity. Government
autonomy is a function of the number of institutional and partisan veto play-
ers in the domestic political system (Immergut, 1998; Tsebelis, 2002).
However, even if their number remains constant over time, actors’ interests—
for example, regarding (non)compliance—may change. Therefore, we use
an index by Henisz (2002), which allows for the interests of veto players in
such a way that interdependences between veto players and the respective
political system are taken into consideration. The constraints covariate is
based on a spatial model of political interaction among government branches,
measuring the number of independent branches with veto power and the
distribution of political preferences across these branches, and can be inter-
preted as a measure of the institutional constraints that produce gridlock
and so undermine the ability of the government to change policies even when
such change is necessary for compliance with EU law.6 We operationalize
1376 Comparative Political Studies 43(11)

government capacity by two indicators. GDP per capita in thousand constant

1995 U.S. dollars (World Bank, 2005) is a general measure for the resources
on which a state can draw to ensure compliance (Brautigam, 1996). Whether
a state has the capacity to mobilize these resources is captured by an index of
bureaucratic efficiency and professionalism of the public service (Auer et al.,
1996; Mbaye, 2001). This index consists of three components: performance-
related pay for civil servants, lack of permanent tenure, and public advertising
of open positions.7
Operationalizing the rule of law is somewhat problematic. Although
the extent of the support for the rule of law can be quantified on the basis
of opinion poll data, good data are rare. We use opinion poll survey data
from Gibson and Caldeira (1996), even though the authors retrieved data
only for 1992-1993. These data measure the extent of support for the rule
of law (in percentages) on the basis of agreement with the following state-
ments: “It is not necessary to obey a law which I consider unfair,”
“Sometimes it is better to ignore a law and to directly solve problems
instead of awaiting legal solution,” and “If I do not agree with a rule, it is
okay to violate it as long as I pay attention to not being discovered.”8 Data
on public EU support (in percentages) are available from Eurobarometer
surveys. Hence, the acceptance of European institutions can be quantified
by the question that refers to the support of the membership of one’s own
country in the EU.

Empirical Analysis and Results

In this section, we report the results of our statistical tests of the effects of
power, capacity, and legitimacy on noncompliance. We discuss the findings
in turn, referring to Models 1 to 5 of Table 1, which simultaneously estimate
the influence of each of the three theoretical approaches, controlling for the
influences of the other approaches. While Model 1 constitutes the basic
model without interactions, Models 2 to 4 test the three different groups
of interactive hypotheses—power and capacity, capacity and legitimacy, and
power and legitimacy, respectively.9 Model 5 tests the robustness of Model
2 by looking at ECJ referrals instead of reasoned opinions. It demonstrates
that our findings are consistent across the stages of the commission’s official
infringement proceedings.10 All models include year fixed effects to control
for period effects that go beyond the growing number of legal acts, unob-
served temporal heterogeneity, and structural breaks, such as the completion
of the internal market.11
Börzel et al. 1377

Table 1. Power, Capacity, Legitimacy, and Violations

(1) (2) (3) (4) (5)

Reasoned Reasoned Reasoned Reasoned ECJ

opinions opinions opinions opinions referrals

Power
GDP −0.0460 −0.0559 −0.0340 −0.0597 −0.0238
(0.034) (0.047) (0.115) (0.083) (0.019)
SSI 0.0336** 0.0312*** 0.0317* 0.0370** 0.0127***
(0.012) (0.008) (0.015) (0.014) (0.003)
Capacity
GDP per capita 0.0001 −0.0013 −0.0009 0.0013 0.0022
(0.003) (0.002) (0.004) (0.004) (0.002)
Efficiency −0.2227** −0.1785** −0.2216* −0.1697** −0.1004**
(0.087) (0.078) (0.102) (0.072) (0.038)
Constraints 0.0176 −0.0449 0.0317 −0.0901 0.0766
(0.279) (0.310) (0.350) (0.356) (0.096)
Legitimacy
Rule of law −0.0020 −0.0063 −0.0043 −0.0044 0.0001
(0.009) (0.007) (0.009) (0.007) (0.004)
EU support 0.0011 0.0013 0.0002 0.0024 0.0002
(0.002) (0.002) (0.002) (0.002) (0.001)
Interaction effects
SSI × efficiency −0.0127*** −0.0042**
(0.004) (0.002)
Rule of law × efficiency −0.0029
(0.009)
EU support × efficiency −0.0034
(0.003)
SSI × rule of law 0.0013
(0.001)
SSI × EU support 0.0012**
(0.000)
Constant 0.1091 0.1389 0.1100 0.1245 0.0154
(0.096) (0.098) (0.089) (0.095) (0.046)
Observations 233 233 233 233 233
Adjusted R2 .48 .50 .49 .52 .44

ECJ European Court of Justice; SSI Shapley Shubik Index.

Dependent variables are reasoned opinions and ECJ referrals per legal act in force, respec-
tively. Entries are ordinary least squares coefficients. Robust standard errors (clustered on
member state) are in parentheses.Year fixed effects are included in all models.
*p  .1. **p  .05. ***p  .01 (two-tailed).
1378 Comparative Political Studies 43(11)

(a) Conditional Slopes (b) Marginal Effect

.8
Efficiency = low

.04
Efficiency = medium
Efficiency = high

Marginal effect of Shapley Shubik Index

Reasoned Opinions per legal act (in %)
.6

.02
.4

0
.2

–.02
0

–.04
90% confidence intervals
–.2

0 .05 .1 .15 .2 0 1 2 3

Shapley Shubik Index Efficiency

Figure 2. The power of obstinacy and government capacity

Enforcement
Our empirical findings support the obstinacy hypothesis. The political weight
in the Council of Ministers (Shapley Shubik Index) has a significant effect on
violations per legal act in all models. Member states such as France and Italy
have more council votes and violate European law more frequently than
member states with lower voting power, such as Denmark and the Netherlands.
Greater economic power (GDP), by contrast, does not substantially affect a
country’s compliance record. The size of the economy does not matter when
it comes to violations of European law.
However, the obstinacy hypothesis has difficulty in accounting for the
compliance performance of the United Kingdom, on one hand, and Greece,
Belgium, and Portugal, on the other. Although the former complies much bet-
ter compared to other “big” countries, the latter three have considerably less
voting power and are still among the worst compliers.
To better understand these outliers, we must inspect Models 2 and 5 more
closely and take a look at Figures 2a and 2b. Although Figure 2a depicts how
the conditional positive slope of voting power decreases with increasing lev-
els of bureaucratic efficiency and the noninteracted covariates held constant
Börzel et al. 1379

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

Management
Testing the effect of government autonomy and government capacity on non-
compliance, we find a strong relation between the effectiveness component
of government capacity and the number of violations in all models. Although
resource endowment measured by the covariate GDP per capita has no sig-
nificant effect on compliance, we can see that greater bureaucratic efficiency
brings about fewer violations of European law. This is in line with other studies,
which also find that the command of resources is less of an issue in the EU
1380 Comparative Political Studies 43(11)

(Hille & Knill, 2006; Mbaye, 2001; Steunenberg, 2006). Compliance appears
to depend much more on the capacity to mobilize existing resources. This
explains why France and Italy, which belong to the wealthiest member states
of the EU, violate EU law as frequently as relatively poor countries such as
Greece and Portugal.
Government autonomy seems to have no effect on the number of viola-
tions. The constraints coefficients are not significant in any model. In fact,
they even change their algebraic sign depending on the model specification. If
anything, previous studies have revealed that countries with several veto play-
ers commit relatively few violations of European law (Börzel, Hofmann,
Panke, & Sprungk, 2003; Mbaye, 2001). Both the literature on consensual
democracies and that on decision making in the EU offer tentative explana-
tions for this counterintuitive finding. On one hand, if domestic constraints
prevent governments from concluding far-reaching agreements in Brussels
(Bailer & Schneider, 2006), there is no need for veto players to block the
implementation of European rules. On the other hand, Lijphart (1999) has
argued that high horizontal and vertical dispersion of policy competencies fos-
ters the inclusion of diverse societal interests into political processes and the
construction of broad compromises. To avoid deadlocks, consensual democra-
cies develop political cultures with inclinations toward diffuse reciprocity. Yet
the fact that both unitary member states such as Greece and France and region-
alized Italy and federal Belgium are included in the group of compliance lag-
gards only emphasizes that government autonomy is a poor predictor for
compliance.
In a nutshell, the government autonomy hypothesis must be rejected,
whereas the bureaucratic efficiency component of government capacity has a
strong negative effect on the number of violations. In fact and as discussed
above, bureaucratic efficiency has an additional desirable property: It improves
the propensity of obstinate member states to comply with European law.

Legitimacy
The statistical analysis finds no significant correlation between the rule of law
covariate and the frequency of violations of European law. Even though four
of the five coefficients point in the right direction, the rule of law hypothesis
cannot be confirmed. However, we must keep in mind the limitations of our
rule of law data discussed above. We would need better rule of law data for a
more reliable statement on the influence of legal culture on compliance. As to
the question of support for the EU, our findings are also disappointing. If
anything, we rather find a positive correlation between public support and
Börzel et al. 1381

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

Discussion
Our article seeks to explain why some member states violate European
law more often than others. In a first step, we developed hypotheses based
on three prominent theoretical approaches. Rather than merely treating the
approaches as competing or alternative explanations, we integrated them in
a theoretically consistent way. In a second step, we extensively tested the
empirical implications of our hypotheses. The regression results show that
especially a combined model of the capacity and power approach explains
a substantial part of the observed variance on our dependent variable.
The combination of power of obstinacy and government capacity yields
promising results. Our quantitative analysis reveals that powerful states, such
as France and Italy, which have a great share of votes in the council, are less
sensitive to enforcement costs and, therefore, have a higher share of violations
than weaker member states (Figure 3, top vs. bottom). Countries with high
capacities, such as Denmark and the United Kingdom, have a better
1382 Comparative Political Studies 43(11)

Figure 3. Power, capacity, and expected compliance

compliance record than states with lower capacities, such as Portugal and
Belgium (Figure 3, right vs. left). By combining the managerial variable gov-
ernment capacity (efficiency) with the power of obstinacy variable (Shapley
Shubik Index) in an interactive way, we can explain the noncompliance behav-
ior of alleged outliers. Although the United Kingdom is as powerful as France
and Italy, it complies better with European law thanks to its higher bureau-
cratic efficiency. Conversely, Greece is one of the least powerful countries in
the EU but is almost as bad a complier as more powerful Italy. What they share
is a substantial lack of government capacity.
All in all, states with high capacities and low political power violate European
law less frequently than other member states. Conversely, the combination of
constrained government capacity and great political power brings together
the inability to comply and the necessary political weight to be obstinate in
the face of looming sanctions. Although there are outliers such as Spain,
which complies much better than predicted, our interactive power of obsti-
nacy and government capacity hypothesis is strongly supported by the data.
The overall predictive accuracy of the integrated model is remarkable.
These findings indicate some pathways for future research. First of all, our
findings point to the importance of disentangling specific variants of each of
Börzel et al. 1383

the three compliance approaches. Within the enforcement approach, the

assertiveness variant was rejected whereas the obstinacy hypothesis success-
fully explains the frequency of noncompliance. Likewise for the management
approach, only the capacity of a government to mobilize existing resources,
and not its autonomy to introduce domestic change, is related to the number of
violations of European law. As for the legitimacy approach, support for the rule
of law rather than for the EU as the rule-setting institution might have some
potential to explain member states’ noncompliance records. Also, there are
variants to the legitimacy approach that focus on norm-specific factors, such as
procedural fairness or peer pressure, which we did not address in our analysis.
Second, the strong interaction effects between variables from the enforce-
ment and management approaches that we found demonstrate the added
value of combining specific aspects of different theoretical approaches to bet-
ter explain noncompliance with European law.
Finally, what does the EU teach us about compliance in world politics?
The EU is often regarded as a system sui generis, whose unique supranational
properties (e.g., supremacy and direct effect of European law) preclude gen-
eralizations to other international institutions. However, if we adopt a fine-
grained-enough perspective, any political institution ultimately will appear to
be one of its kind. Although the EU is the most legalized system in the world
(Alter, 2000), institutionalized compliance mechanisms can also be found
elsewhere (Peters, 2003; Smith, 2000). Thus, our study has three important
implications for state compliance with international law.
First, states with both low capacities (in terms of bureaucratic efficiency)
and high shares of power are likely to be compliance laggards and delimit the
power of international law. They lack the capacity to immediately comply and,
at the same time, are not willing to introduce major resource redistributions
and investments but rather rely on their ability to resist enforcement pressure.
Second, the twinning of management and enforcement instruments is an
effective way to establish compliance (Tallberg, 2002). The combination
of managerial dialogue, capacity building, and penalties addresses the two
major sources of noncompliance identified by our study. However, the mana-
gerial instrument of capacity building is not sufficient if it merely entails the
transfer of resources to noncompliant states. Rather, it is essential to foster
bureaucratic efficiency, for example, by promoting anticorruption measures as
part of “good governance.”
Third, there is one factor that may limit generalizations from the EU to
other international organizations. Even though there is a gap in capacities and
power between member states, the EU consists of a group of relatively homog-
enous states, which face a globally unique level of political and economic
1384 Comparative Political Studies 43(11)

integration. By contrast, the membership of other international organizations

and regional integration agreements, such as ASEAN or NAFTA, is much
more heterogeneous in terms of economic strength and development and
financial or administrative capacities. This also applies to the regime types of
member states, their respect for human rights, and the rule of law. We cannot
explore the role of these potential background variables because they are con-
stant within our data set. Future research should explore to what extent these
economic and political factors affect the explanatory value of the integrated
power capacity model and to which extent they account for unexplained
variation.

Acknowledgments
We thank Andrea Liese, Katerina Linos, Brooke Luetgert, Thomas Risse, Beth A.
Simmons, Bernard Steunenberg, and the editor and anonymous reviewers for helpful
comments. Earlier Versions of this article were presented at the 104th annual meeting
of the American Political Science Association and seminars at the European
Commission, Harvard University, Keio University, Leiden Universiteit, Princeton
University, University of Toronto, University of Victoria, and Waseda University.

Declaration of Conflicting Interests

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

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

Notes
1. Regarding corruption, France scores significantly lower than all other Northern
and Western European member states whereas Italy and Greece are a class of
their own (Transparency International Perceived Corruption Index, http://www.
transparency.de/Tabellarisches-Ranking.1237.0.html; cf. Kaufmann, 2004).
2. The data set will be made publicly accessible on the authors’ website.
3. We did not receive a complete list of those cases that were settled before the
European Commission issued a reasoned opinion as information on complaints
and formal letters is considered confidential. The first year for which the Com-
mission comprehensively collected infringement data is 1978. The last year for
which the Commission was willing to give us access to its database is 1999.
Börzel et al. 1385

4. The questionnaire sent out to the 15 representatives consisted of six questions,

asking the Committee of Permanent Representatives experts how they would
assess the level of compliance of their own country vis-à-vis other EU countries,
which member state they perceive as performing best and worst, and whether
they think that the Commission’s infringement data are biased toward certain
member states.
5. Of course, member states can also differ in their opportunities to violate specific
legal acts. Their land-locked geographical location prevents Austria and Luxem-
bourg, for instance, from violating European law pertaining to deep-sea fishing.
However, although the large number of European legal acts and the wide range
of policies they cover make determining and explicitly controlling for the indi-
vidual “violative opportunities” of all member states and for all legal acts virtu-
ally impossible, they also allow us to assume that these varying opportunities are
evenly distributed in the aggregate.
6. We controlled for alternative indicators of government autonomy in a separate
study and found that they are neither significantly nor robustly correlated with
noncompliance (Börzel, Hofmann, Panke, & Sprungk, 2003).
7. Bureaucratic efficiency highly correlates with measures of corruption, for exam-
ple, the Corruption Perception Index of Transparency International (Herzfeld
& Weiss, 2003). To avoid multicollinearity, we include only bureaucratic
efficiency in our analysis. Other potential indicators of government capacity—
such as bureaucratic quality from the World Bank governance indicators
(Kaufmann, Kraay, & Mastruzzi, 2006)—lack sufficient variance among the
EU member states.
8. Alternative indicators used in the rule of law literature include the “law and
order tradition” (Kaufmann et al., 2006). When substituted for the Gibson and
Caldeira measure of the support for the rule of law, it produces virtually identi-
cal results.
9. Table 1 does not contain a model that brings all interaction effects together in one
single integrated model with or without three-way interactions of power, capac-
ity, and legitimacy. Such a model does not lend itself to substantive interpretation
because of the severe multicollinearity introduced by the sheer number of multi-
plicative terms. In fact, although variation inflation factors above 10 are consid-
ered indicative of multicollinearity, they are in the hundreds in such a model.
10. We also estimated separate models for failures to transpose and implement Euro-
pean legislation, which produced virtually identical results for both types of non-
compliance.
11. As to unobserved country heterogeneity, we decided against a fixed-effect speci-
fication, which impedes the inclusion of time-invariant covariates and disregards
the cross-country information in the data (cf. Plümper, Manow, & Tröger, 2005).
1386 Comparative Political Studies 43(11)

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Bios
Tanja A. Börzel is professor of political science and holds the chair for European
integration at the Otto Suhr Institute for Political Science, Freie Universität Berlin.
Together with Thomas Risse she directs the Transformative Power of Europe research
college.

Tobias Hofmann is visiting instructor of government at the College of William &

Mary. His research interests include the political economy of international organiza-
tions and regional integration.

Diana Panke is lecturer of politics at the University College Dublin. Her book The
Effectiveness of the European Court of Justice: Why Reluctant States Comply, which
deals with the power of judicial discourses in the European Union, has just been
published by Manchester University Press.

Carina Sprungk is an assistant professor at the Otto Suhr Institute for Political
Science, Freie Universität Berlin. Her research interests include European Union
politics, compliance, legislative politics, and environmental policy.

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