Ulrich Sedelmeier: The “eastern problem” revisited

Ulrich Sedelmeier“The performance of the EU8 is not only better on average, but almost every individual EU8 [country] also performed better than almost every old member state.”

Ulrich Sedelmeier is a Senior Lecturer at the Department of International Relations at the LSE in London. He was earlier Associate Professor of International Relations and European Studies at the Central European University in Budapest. He has co-edited “The Europeanization of Central and Eastern Europe” with Frank Schimmelfennig and has published many articles on the EU and the latest EU enlargement.

In one of his most recent articles, Ulrich Sedelmeier picks up the question of the new East European member states’ compliance with the acquis. “Criticism notwithstanding,” Sedelmeier writes, “EU conditionality was generally very effective in prompting the CEECs’ alignment with the aquis. However, there are doubts whether this success of the EU’s pre-accession conditionality is sustainable after accession.” Available literature on EU compliance and pre-accession conditionality, he notes, suggests the emergence of an “eastern problem”.

“The literature on pre-accession alignment and EU compliance would expect accession to result in much more serious compliance problems in the post-communist new members compared to the older member states. The dominance of the conditional membership incentives for pre-accession rule transfer, as well as the high costs of compliance and capacity limitations in the EU8, suggest that the good performance of the EU8 during the pre-accession period will quickly erode. The likelihood that formal rule adoption will result in behavioural rule adoption is low.”

Four years after the accession of the EU-8, Sedelmeier examines the available facts. His analysis of the most recent data on transposition of the acquis and infringement of EU law delivers astonishing results: “far from constituting an ‘eastern problem’, compliance in the new members has been surprisingly good.”

All EU directives need to be transposed into national law by an agreed deadline. Once the member states have done so, they must notify the European Commission.

“Initially, transposition rates among the EU8 diverged significantly. Five of the EU8 started with rates well below the average for the EU15. However, since 2005, the EU8 have done consistently better than the EU15. Only the Czech Republic temporarily dropped again below the average of the EU15 … at the end of 2006, four of the EU8 were in the top five, with a further three in the top 11. Thus, after initial problems for some of the EU8, they have rapidly improved and maintained transposition rates that are clearly better than the EU15 on average and for most of them individually.”

Infringements measures are actions taken by the Commission against member states that violate EU law. If a case is not resolved informally before the Commission starts the infringement procedure (which happens in most cases), the Commission sends a “letter of formal notice”. For those cases that remain unresolved, the Commission delivers a “reasoned opinion”. The last possibility is a deferral of the case to the European Court of Justice (ECJ).

“The performance of the EU8 is not only better on average, but almost every individual EU8 also performed better than almost every old member state. Lithuania is the outstanding performer in the EU, and the top nine include seven of the EU8 … In sum, compared to the old member states, the infringement record of the EU8 – both on average and for most of them individually – is excellent.”

The EU-8 countries’ record also holds up with respect to directives with a post-enlargement implementation deadline. Relevant data suggests that the number of initial infringements in the EU8 is not significantly lower, but that the EU8 member states settle their cases much quicker than the EU15.

Table: Infringements of directives with a post- 1 May 2004 implementation deadline

191 directives (2004 and 2005)

EU 15

EU 8
Infringements (%) 39.2 32.8
Reasoned opinions (%) 16.4 6.7
Referrals to the ECJ (%) 7.1 1.3
Av. duration of infringement cases (months) 13.4 11.0
Open cases (by 1 May 2007) 7.9 2.3

There are a number of potential objections to the argument. Transposition figures measure only formal implementation of directives. They reflect the number of directives whose transposition has been reported to the European Commission by the member states – but they do not necessarily measure whether the directive has been correctly transposed, let alone applied and enforced.

Infringement data, on the other hand, focus on correct application, but they cover only non-compliance cases detected and taken up by the European Commission, which mostly relies on reports by aggrieved parties, ie companies, interest groups or individuals. This might only be the tip of the iceberg. A systematic bias might play to the advantage of the EU8: the extent of undetected non-compliance cases might be higher as citizens, firms and interest groups are less aware of their rights than their counterparts in the EU15. The fact that complaints are a considerably less significant source of infringements in the EU8 than in the EU15 gives some weight to this criticism. However,

“even if the lower incidence of complaints explained some of the difference in the infringement patterns, it does not affect the differences in settlement behaviour – the greater inclination of the EU8 to settle emerging infringement at an earlier stage of the infringement procedure.”

The short observation period and the fact that the EU8 had negotiated some transition periods in the more challenging areas of EU law might also distort the picture, but – according to Sedelmeier – it is “unlikely that they had a dramatic impact”.

Further research is required in order to explain the very good performance of the EU8. The safeguard clause cannot explain it: though it expired in May 2007, compliance did not deteriorate (and even improved on 2006, except in the case of Poland).

Sedelmeier offers two tentative explanations.

First, the EU8 had made “an institutional investment to increase the effectiveness of national arrangements for the adoption of EU law, which allowed them to transpose a massive amount of acquis into national legislation within a very short period of time.” Many of the EU8 countries have kept some of the pre-accession procedures in place, increasing their capacity to deliver timely transposition. Speedy procedures, however, might also have some drawbacks in terms of lacking debate and transparency.

Second, the post-communist member states might have become “socialised” to the effect that jockeying for position in the accession regatta has made national elites anxious to improve their countries’ relative performance.

  • Ulrich Sedelmeier, “After conditionality: post-accession compliance with EU law in East Central Europe”, Journal of European Public Policy, 15 (6), pp. 806-825.
  • achel A. Epstein and Ulrich Sedelmeier, “Beyond conditionality: international institutions in postcommunist Europe after enlargement”, Journal of European Public Policy, 15 (6), pp. 795-805.
11 August 2009