Implementing European case law at the bureaucratic frontline: How domestic signalling influences the outcomes of EU law

Abstract

This article analyses the implementation of European case law at the bureaucratic frontline of European Member States. Theoretically, insights from street-level implementation studies are combined with judicial impact research. Empirically, we compare how EU rules on free movement and cross-border welfare are applied in practice in Denmark, Austria and France. We find that when applying EU rules in practice, street-level bureaucrats are confronted with a world of legal complexity, consisting of ambiguous rules, underspecified concepts and a recent judicial turn by the Court of Justice of the European Union (CJEU). In order to manage complexity, street-level bureaucrats turn to their more immediate superiors for guidance. As a consequence, domestic signals shape the practical application of EU law. Despite bureaucratic discretion and many country differences, domestic signals create uniform, restrictive outcomes of EU law in all three cases We, thus, show that there is considerable room for politicscommunicated by means of domestic signalling-in the EU implementation processes.

‘Social Citizenship’ at the Street Level? EU Member State Administrations Setting a Firewall

“…Second, my contribution adds to existing research as it provides an argument for why authorities tend to limit the impact of the Court if it is linked to costs, independent from signals from domestic superiors (Martinsen et al, ): Limited social citizenship can be explained by the fact that, in the end, administrations share the same rational incentives, to keep both administrative and financial costs low. While there is a broader trend to limit the influence of EU law in practice, there are differences in the shade of compliance on the ground.…”

“…Conant (, p. 33) already identified ‘complete application as policy’ to be a rare outcome of Member States when reacting to ECJ case law. Moreover, scholars showed that the application of ECJ case law on social citizenship was increasingly guided by signals from domestic political and administrative superiors which reduced authorities' discretion and led to uniform restrictive practices across member states (Martinsen et al, ). As I argue in this article, the impact of the ECJ is limited – also without signalling, and I emphasize that the responses are more faceted than Conant's overall concept of ‘contained compliance’.…”

“…To which extent street‐level bureaucrats ‘comply’ with ECJ case law depends on different domestic factors which may vary between and also within Member States, and over time. As street‐level bureaucrats generally follow rules which are clear, easy and in line with the overall goal, it is decisive whether or not the vague provisions and terms of EU law are reflected in national laws or guidelines (Sampson Thierry and Martinsen, ; Martinsen et al, ). If there are no clear rules, local authorities are granted discretion.…”

“…Yet, in order to learn about the Court's impact, one needs to consider the implementation of its case law within Member States (Conant, ), and also beyond transposition (Treib, , p. 29): one also needs to study its application. Scholars of Europeanization through case law have recently started to examine the impact of the ECJ in practice (for instance: Conant, ; Dörrenbacher, ), and researchers have already shown that both sides of integration through law scholars overrated the impact of the ECJ (O'Brien, , ; Shaw and Miller, ; Martinsen et al, ).…”

“…The contributions of this article are thus threefold; first, I develop shades of compliance which capture Member State behaviour besides the current dichotomy of compliance and non‐compliance. Second, I argue that, if the impact is not already clearly limited at a political and guiding level via signalling (Martinsen et al, ), local Member State administrations have tended to limit the influence of the ECJ entailing a shade of compliance in terms of ‘less Europe’. This can be explained by the fact that, in the end, administrations share the same rational incentives, to keep both administrative and financial costs low.…”