Is there an impact of democratic quality on infringements of EU law? A new approach towards the study of non-compliance Part 2: Quantitative Analysis

INTRODUCTION

In the first part of this study, we have seen how the European Union, in this case mainly the European Commission, acts when a member state violates EU law. It also summarised various theories that try to explain why some states infringe more often than others. However, none of these theories included the democratic quality of the countries concerned. Arguably, this is a shortcoming of the theoretical framework researchers have been using in the past.

In the second section of the first part, the weakening of democratic quality in various countries was pointed out. Within the EU, this democratic backsliding affects Hungary and Poland in particular.

In this second part of the study, these two threads will be brought together and it will be examined whether a correlation between infringements of EU law and democratic quality can actually be established. To do so, we will draw on quantitative methods, in this case, a regression model.

I – Measuring democratic quality

A- The concept of Polyarchy

Before introducing the V-Dem dataset on the democratic quality of states, it is necessary to mention its theoretical forerunners. Thinking about democracy is not an easy undertaking. In which cases can one speak of democratic states? Which threshold do they have to surpass for being recognized as democracies? According to Robert Dahl, the term ‘democracy’ should be reserved for political systems that are completely or almost completely responsive to their citizens [1]. However, such a system may have never existed. This is the reasoning behind his introduction of the term ‘polyarchy’: “Polyarchies, then, might be thought of as relatively (but incompletely) democratized regimes, or, to put it in another way, polyarchies are regimes that have been substantially popularized and liberalized, that is, highly inclusive and extensively open to public contestation.” [2]

This concept helps for distinguishing between polyarchal democracies and dictatorships, which is the truly salient choice according to some researchers [3].

For reasons of better legibility, we will still be using the term ‘democracy,’ bearing in mind, however, Dahl’s contribution on the complexity of the issue. Following Lührmann and Lindberg, the study bases its understanding of democracy on universal suffrage, clean elections, an elected executive, and freedom of press and association [4].

B- V-Dem

Given the objective of analysing whether there is a correlation between infringements and the state of democracy in member states, it is indispensable to have some kind of measurement of democratic quality. As Diamond underlines, “[t] he debate about whether there has been a decline in democracy turns to some extent on how we count it.” [5] Democracy, in that sense, is a continuous variable [6]. Varieties of Democracy (V-Dem) is an internationally leading project in this context. On an annual basis, they provide a multidimensional and disaggregated dataset reflecting the complexity of democracy. It distinguishes between five principles of democracy: electoral, liberal, participatory, deliberative, and egalitarian. According to these five principles, countries are categorized into four different types: closed and electoral autocracies, and electoral and liberal democracies. Countries’ scores change every year; thus, states might slip into another category. V-Dem terms a slip from liberal to electoral democracy a ‘democratic regression’ and the slip from an electoral democracy to an electoral autocracy a ‘democratic breakdown.’ Both changes are the result of ‘autocratization’ – the opposed trend being ‘democratization’ [7]. The combination of the five principles is laid down in the estimates for polyarchal democracy.

In the case of the EU, one can speak, like former American ambassador to the United Nations Samantha Power of ‘democratic backsliding’ [8], despite the critique of this term brought forward by Lührmann and Lindberg [9]. In this paper, we use ‘democratic backsliding’ and ‘autocratization’ interchangeably, understood as a move away from full democracy.

II – Relationship between democratic quality and compliance with supranational law

A- An intergovernmentalist perspective

In order to proceed logically, it should be mentioned that we follow the intergovernmentalist perspective. This echoes the enforcement approach laid down in part I. We do not consider democratic backsliding as something that just happens to states – despite semantic discrepancies –, rather as “a gradual, deliberate, but open-ended process of de- democratization” [10]. Consequently, following the intergovernmentalist approach, not only the democratic quality can be influenced by the government, but also the rate of compliance: “national non-compliance [can be] caused by deliberate opposition of national actors” [11].

Thus, we follow the researchers who turned their attention away from questions of state capacity towards wilful and deliberative non-compliance [12]. Using an intergovernmentalist approach usually entails a unitary actor perspective, e.g. we focus on national governments as rational entities which are the “the main actors in regard to the process of legal implementation” [13].

B- Democratic compliance and democratic legalism

Presently, let us turn to the question why a negative correlation between the number of infringement proceedings and democratic quality can be expected. In other words, why should democratic quality be a safeguard for compliance with supranational law?

In academia, a sort of consensus has been reached on the better compliance record of democratic regimes. Given that there has not been any research on this case specifically conducted in the context of compliance with EU legislation, we draw, in this chapter, on International Relations literature.

In general terms, it seems straightforward that international institutions can only be effective when members comply with the requirements [14]. Again, the argument of social pressure comes up. As Young points out, policy-makers are expected to be sensitive to opprobrium that comes with non-compliance [15]. Consequently, democratically elected leaders would try avoiding such instances by abiding by the law.

Drawing on Young, Beth Simmons tried to establish a link between democratic quality and compliance. In her article resuming the main theoretical ideas on compliance, Simmons mentions realist and functionalist approaches, both interest-driven, before turning to what she calls “democratic legalism”. According to democratic legalists, the type of a regime is crucial for understanding the role of law in their international relations, in her own words, “democratic legalism looks at the distinctive features of democratic regimes that tend to bind them into a ‘zone of law’ in the conduct of their foreign relations.” [16]

Democratic legalists tend to agree that “democracies are more likely to comply with international legal obligations” [17]. This is so mainly for the following reason: liberal democratic regimes share affinities with international legal institutions and procedures. Hence, they are more willing to depend on the rule of law externally as well as internally. The separation of powers, limited government, constitutional constraints, and respect for judicial processes are expected not only to be prevalent domestically, but also internationally [18]. In conclusion, countries with independent judiciaries are more likely to respect international judicial processes and policy-makers who are used to domestic constraints should accept international constraints more easily than autocrats; “therefore, governments with strong constitutional traditions, particularly those in which intragovernmental relations are rule- governed, are more likely to accept rule-based constraints on their international behavior” [19].

Two distinct mechanism are expected to tighten the link between domestic rule of law and the abidance of international law; first, the absorption of the latter into the national law, second, the influence of international law on domestic groups who, in turn, influence their government’s policy. Despite this theoretical framework, Simmons concludes that it is difficult to establish causation for compliance [20].

In a more recent article, Hill and Watson strengthen Simmons’ line of argumentation. Focusing on compliance in international relations, the scholars analyse the effects of democracy on the respect for human rights treaties. They “expect treaties to have different effects in different regime types” [21]. Like Simmons, they stress the importance of domestic interest groups. In addition, they underline the roles of domestic courts and a free press that can also make treaties effective [22]. This is the reason for them to conclude that, even though on special occasions democracies may be less compliant than other regime types, “[a]utocracies will be, on average, less responsive than democracies to demands for compliance” [23].

Another important contribution Hill and Watson make is of different nature. They point to the difficulty of disentangling democratic quality and compliance. By definition, Hill and Watson argue, democracies are already compliant with many of the treaties’ provisions [24]. This is certainly true in their scenario. Nevertheless, in the specific case of EU infringement proceedings, democratic quality and compliance are not co-constitutive in the same manner. As seen above, the cases opened by the EC do not address fundamental changes in democratic quality, rather common violations.

C- The rule of law-democracy nexus

On top of democratic legalism, we want to underline the so-called “law-democracy nexus”. Democracy and the rule of law are two of the core values of the EU. According to former member of the European Parliament and former European Commissioner for Justice, Fundamental Rights and Citizenship Viviane Reding, “[b]y ‘rule of law,’ we mean a system where laws are applied and enforced [...] but also the spirit of the law and fundamental rights, which are the ultimate founda- tion of all laws” [25].

Rule of law and democracy, in this vein, are not merely two core values, but mutually constitutive. Tommasoli, who distinguishes also between rule by law and rule of law, speaks, hence, of “the rule of law-democracy nexus” [26]. Even if “the concept of rule of law is an elusive and controversial one” [27], we can expect that developments of the democratic quality will have an impact of the rule of law and vice versa. For Tommasoli, an independent and functioning judiciary is a prerequisite for the rule of law [28]. As noted in part I, the judiciary systems in some EU member states have major flaws today. These countries seem to bow out of the “world of law observance” and might enter the “world of neglect” [29]. This leads us to the following hypothesis.

III – Hypothesis

One can expect that the democratic quality of a state has a positive impact on their compliance ratio with European legislation. Insights from both, democratic legalism and the rule of law- democracy nexus imply such a correlation. A quick look at the opposite might as well be useful for this argument. The two figures below show the regression lines for Hungary (yellow), Poland (red) and for the average values of the rest of the European Union (black). Figure 1 shows the trends of the opened infringement procedures from 2005-2019 and Figure 2 the trends of the democratic qualities for the same time period:

It seems that there could be a correlation between decreasing democratic quality and opened infringement procedures. Although the tendency is also negative for the main backsliding democracies, i.e. fewer infringement procedures are opened, the decreasing tendency is much less pronounced than on the EU average.

This does not mean that the three approaches (summarised in part I) lose their appeal. They seem to apply to countries that seek to comply with EU law. In the relatively new context of autocratizing member states, a new perspective is useful. Again, some states might pursue deliberate opposition to the EU and its legal framework. This can happen, as Falkner et al. point out, in two different ways: (a) through the backdoor, when governments are from the beginning against a certain EU directive or (b) by non-compliance to protect the national patterns without dispute at the prior decisions-making stage [30].

Thus, some older arguments do not convince entirely. According to Börzel and Heidbreder, powerful member states may infringe more often than smaller states because they can afford the material and the immaterial costs [31]. Material costs can be penalties; immaterial costs can touch on the reputation of a state. However, autocratizing states are not likely to care about their reputation, they probably do not “wish to be viewed as ‘good Europeans’” [32].

The deliberative creation of “misfit or mismatch” [33], as to be seen in the Polish and especially in the Hungarian context, where the Western European type of democracy is at least partially rejected [34], allows us a new vantage point on non-compliance.

The prosecution by the Commission, hence, does not necessarily weaken the political credibility of a member state, as Börzel and Heidbreder suggest [35]. On the contrary, “being an enfant terrible can be beneficial for small actors in some (mainly tactical) games” [36]. Non- compliance could then be perceived as a means to protest against EU’s policies [37].

IV – Operationalisation

In this paper, data of EU member states from 2005-2019 is analysed. This means that the United Kingdom’s data is still analysed, for the UK had to abide by EU law until end 2020 [38]. More recent data, from 2020 and 2021, have not been included in this study due to the Covid-19 pandemic which distorts all important factors.

We chose 1 January 2005 as a starting point rather than 1 May 2004 (the day of official accession of ten new member states to the EU) for one reason: cases can only be opened after an infringement was detected. That means that during the period following directly the 2004 enlargement, data is likely to be distorted. Implementation takes time and resources [39]. For instance, during the first week of May 2004, 34 infringement proceedings were opened EU wide, exclusively against EU-15 member states and not one against a new member state. Likewise, we chose 1 January 2008 for Bulgaria and Romania and 1 January 2014 for Croatia. This decision also accounts for the graduality of democratic development in the member states [40]. Autocratization is not an ad hoc procedure, as can be seen in V-Dem’s dataset.

As stated above, we use V-Dem data for the measurement of democratic quality. In addition to this “key causal variable” [41], the general democratic quality of a member state, measured as the polyarchal democratic quality, we focus in a second step on one subcategory of this estimate, “Judicial_constraints”. The first variable, “Democratic_quality”, seeks to measure the rulers’ responsiveness to citizens, achieved through electoral competition under extensive suffrage, freely operating political and civil society organisations, and clean and effective elections. Additionally, the freedom of expression and independent coverage of media in between elections are included. The second variable, “Judicial_constraints”, conveys estimates responding to the question to what extent the executive respect the constitution and comply with court rulings and to what extent the judiciary is able to act independently.

Both V-Dem variables are measured from 0-1, with 1 being the highest value for democracy and free judiciary. Given that the second estimate is a part of the first one, we calculate two different regression models for both values.

We use data from different institutions to control for potentially confounding variables. For “GDP” and “GDP_capita”, we use data from the World Bank Development Indicators. The GDP values are given in billion US $, those for GDP per capita in thousand US $ as conveyed by macrotrends [42]. “Population_size” shows the population of a country in million individuals as conveyed by worldometers, using UN data [43]. All three variables, “GDP”, “GDP_capita”, and “Population_size” can be linked to the enforcement approach and to the power of a member state. The same is true for the vector “EU_Power”. It is the composed number of Members of the EP and Weighed Votes in the Council of the EU per member state.

The four vectors for “Government_effectiveness”, “Regulatory_quality”, “Rule_ law” and “Voice_accountability” show data from The Worldwide Governance Indicators by the World Bank. The estimates give the country’s score on the aggregate indicator, in units of a standard normal distribution, i.e. ranging from approximately -2.5 to 2.5. “Government_effectiveness” captures perceptions of the quality of public services, the quality of the civil service and the degree of its independence from political pressures, the quality of policy formulation and implementation, and the credibility of the government’s commitment to such policies. “Regulatory_quality” shows perceptions of the ability of the government to formulate and implement sound policies and regulations that permit and promote private sector development. “Rule_law” conveys perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence. “Voice_accountability”, finally, captures perceptions of the extent to which a country’s citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media. It has to be said that we only use the variable “Rule_law” in our first regression model, analysing the general democratic quality not in the second one, analysing more specifically the judicial constraints. We do so in order to avoid a doubling of confounding factors. All four variables can be linked to the managerial approach.

The variable “Government_expenses” shows how many percent of the country’s GDP are spent on the public sector per year. The data stems from the World Bank [45]. They use their own estimates and compare them to estimates of the IMF, Government Finance Statistics Yearbook and data files, and OECD GDP estimates. “Government_expenses”, hence, can also be linked to the managerial approach.

“Duration_membership” shows the number of years since the accession of the respective country to the EU. This variable, very much like the upcoming “Public_support”, have to be linked to the constructivist approach, accounting for the learning capacity of a government.

“Public_support” shows results from the Eurobarometer [46]. We always use the second poll of the year, showing results of the public opinion in the EU in autumn. The estimates convey percentages of the national populations. Since the Eurobarometer researchers did not ask the same questions every year, these results must be treated with caution. From 2013 onwards, our values show the percentage of people replying “very positive” or ”fairly positive” to the following question “In general, does the EU conjure up for you a very positive, fairly positive, neutral, fairly negative or very negative image?”. Before that, the results show the answer “A good thing” to the question “Generally speaking, do you think that (OUR COUNTRY)’s membership of the European Union is/would be...?”.

Finally, the variable “Corruption” needs also to be treated carefully. In 2012, Transparency International changed their methodology [47]. The results before and after that year are not necessarily comparable. Corruption, measured from 0-100, is defined as the abuse of entrusted power for private gain, thus weakening democracy, hampering economic development, and exacerbating inequality, poverty, social division, and environmental crisis. The Corruption Perceptions Index (CPI) aggregates data from a number of different sources that provide perceptions by business people and country experts of the level of corruption in the public sector. The higher the score, the fewer cases of corruption have been perceived. Again, this variable can be linked to the managerial approach.

V – Results

For our calculations, we use timed fixed effects. Given the spatial limitations of this publication, we do not apply country and time clusters. For the same reason, we use lagged dependent variable models [48], without going into detail on these results in the discussion.

VI – Discussion

Overall, these state-based results do not compare the differences between the member states but convey only an analysis for the European Union as a whole. However, there are indeed differences amongst member states in their levels of infringements [49].

Using linear models for panel data with time fixed effects, we compare the results for the impact of overall democratic or polyarchal quality (models 1-14) and of the sub-variable of judicial constraints (15-27) in a country on their infringement record with EU law.

Coming back to our hypothesis, nearly all models of both tables show a negative and significant correlation between the democratic quality/judicial constraints of countries and their non- compliance with union law, meaning that more cases of infringements can be expected in backsliding democracies. Our hypothesis, consequently, does not have to be rejected and should be included in upcoming research.

Both tables show also reveal interesting results on the three approaches (enforcement, managerial and constructivist) as shown in the first part of this study. Power within the EU, measured by the number of parliamentarians in the EP and votes in the Council, does have a positive and significant correlation with infringement proceedings in all but the lagged models. The enforcement approach, thus, can be partially confirmed. Somehow counterintuitively, the same holds true for the regulatory quality (which can be linked to the managerial approach) which also has a positive correlation with infringements. Surprisingly (if one follows the enforcement approach), GDP, on the contrary, has a (small) significant negative impact on infringements. In contrast, our findings are in line with Börzel’s results regarding the constructivist approach; the duration of membership has a negative and highly significant effect on new infringement proceedings [50]. Over time, member states comply better with EU law (with the exception of Bulgaria, Romania and Croatia), even the backsliding democracies. Most states, even the backsliding democracies, in that sense, are learning in the European context, despite the fact that they reduce willingly their democratic traditions and institutions. By learning, we mean that actors can improve their record. Or to put it in Berglund’s words: “Learning thus means choosing those alternatives that make them get ‘the carrot’ or avoid the ‘stick.’” [51] Likewise, Gourevitch suggests the following: “[c]ompliance, adherence, and cooperation all turn on the political calculation of member countries that it is best to comply” [52].

An argument one could potentially derive from these findings is that by complying with EU law, the concerned governments try to play down their democratic backsliding. Either way, it is certain that both governments (Fidesz and PiS), in best realist tradition [53], try to gain power, domestically and internationally. The ongoing Covid-19 crisis is likely to reinforce these developments [54].

These results, however, must be relativized. When applying country and time clusters (the results are not included due to spatial restrictions) for more robust standard errors, it becomes visible that the significances of most variables change. The estimates for overall democratic quality and for judicial constraints are still negative, but less significant than in the preceding models. Applying lagged depending variable models, GDP is the most relevant variable in both tables (model 14 & 27), using both group and time clusters.

VII – Shortcomings

It is beyond the scope of this paper to develop an encompassing theory of why member states comply or do not comply with EU law. However, it seems as if democratic quality and judicial constraints are useful variables for predicting the level of infringements of EU member states. Other factors must be included, but it is naturally impossible to include all possible confounding variables. Thus, one of the main shortcomings of this contribution is inherent to all papers on this topic; it seems impossible to know whether states infringe due to a lack of capacity or willingness.

Further shortcomings touch on the chosen approach. A qualitative analysis could have contributed fruitfully. A closer look at what kind of infringements were detected, e.g. an approach that controls for sector-specificity, would have been insightful. Furthermore, it will certainly be interesting to analyse all different sub-variables and parameters of democratic quality and not merely the overall composed score and the estimates for judicial constraints.

Finally, it would be insightful to compare several different member states of the European Union more in detail.

VIII – Conclusion

Analysing compliance is now a well-established part in research of the EU. Good compliance is often seen as a sign for advancing Europeanisation. In that sense, Bunde and Eisentraut mention Germany’s infringements with EU law record as an example for not being a good European leader [55]. In addition, democratization and autocratization (which can be interpreted as a de-Europeanisation) are now at the centre of European research – due not only but mainly to the backsliding democratic quality of some European member states. In this paper, consequently, we linked the democratic quality of a country to its infringement record.

Measuring compliance is difficult. The EU relies on its members and subnational groups in order to learn about non-compliance. During the infringement proceedings, the EU also relies on feedback and comments of the states. Normally, national governments monitor domestic implementation and transposition, so that the EC depends on their reports. However, since there is no evidence of bias in the EU’s measurements, and it is the only data available in this context, we relied on the Commission’s data on infringements.

The merging of two datasets, one on infringement proceedings provided by the EC, and one on the democratic quality (and of the sub-variable concerning the judicial constraints) of states provided by V-Dem, allowed us to carry out a quantitative analysis. That means that we did not go into detail on neither type of infringements nor factors of democratic quality.

There is evidence that all member states of the EU improved their track record with regard to implementation of EU law – except for the latecomers Romania, Bulgaria and Croatia. However, some member states could not or would not improve their numbers as much as others. This is a crucial finding for our hypothesis: our study suggests that democratic quality is a safeguard for a better compliance record. In other terms, a high democratic quality is expected to have a negative correlation with the number of opened infringement proceedings.

We included several potential confounding variables in our regression models, touching on the three main theoretical approaches (enforcement, managerial, and constructivist) aiming at explaining (non-)compliance with EU law. Especially the power of the member states within the EU (measured by the members of parliament and the votes in the Council), the duration of membership, the public support of the EU within the member states’ population, the countries’ GDP, its regulatory quality, its estimate for rule of law and the government’s effectiveness are the most significant confounding variables.

Consequently, our results confirm partially the three approaches, the enforcement, the managerial and the constructivist approach. This underlines an important part of our research. It should not be the intent of our analysis to replace older theories. On the contrary, including data on democratic quality into the research is an additional tool for explaining (non-)compliance.

When replying to our hypothesis, both the impact of democratic quality and of judicial constraints, as conveyed by V-Dem, are significant in most models; there is indeed a negative correlation between these two and newly opened infringement cases. Our hypothesis, hence, does not have to be rejected. Depending on whether one uses group and time clusters or not, there are differently significant negative correlations between democratic quality and cases of non-compliance with EU law. It is therefore possible to assume that strong traditions of law abidance in member states generally lead to according role models of political and administrative actors who “consider it their duty to abide by the law, including the obligation to transpose European directives timely and correctly” [56]. Democratic backsliding, thus, could lead to more cases of non-compliance. However, since ratios of compliance have still been improving over the past years, not only in stable but also in backsliding democracies, one should not overestimate the influence of democratic quality on compliance. There still seems to be a certain form of Europeanisation, that is an “influence of ‘Europe’ on its member states” [57]. Following the functionalist approach [58], member states, with the prominent exception of the United Kingdom, still seem to feel that they benefit from the EU in general. Be it in economic or political terms. This could be the reason for Hungary, even as the first authoritarian member state, still becoming more effective in implementing EU legislation.

This leads us to believe that research on compliance, especially in the European framework, still needs new input. Our proposition to include the democratic quality as a contributing factor is a step in the right direction. Given that compliance records and democratic quality are evolving factors, it will be interesting to see whether our hypothesis can withstand further analyses in the future.

Bastian Spangenberg
Under the supervision of Dr Élise Bernard

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[53] Simmons 1998.

[54] Buras, P. (2020), First Hungary, now Poland. It’s time for Europeans to speak out against COVID-19 power grabs, https://www.euronews.com/2020/04/15/ first-hungary-now-poland-time-for-europeans-to-speak-out-against-covid- 19-power-grabs-view; Goclowski, M. (2020), Poland, Hungary scolded for flouting ‘European values’ during pandemic, https://www.reuters.com/article/ us-health-coronavirus-election-europeanp/poland-hungary-scolded-for-flou- ting-european-values-during-pandemic-idUSKBN21Z2GP.

[55] Bunde, T. / Eisentraut, S. (2020), The Enabling Power. Germany’s European Imperative (Munich Security Brief, July 2020), Munich Security Conference.

[56] Berglund et al. 2006, p, 701. [57] Ibid, p, 692. [58] Simmons 1998.

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Résumé
In the first part of this study, we have seen how the EU, in this case mainly the EC, acts when a member state violates EU law. It also summarised various theories that try to explain why some states infringe more often than others. However, none of these theories included the democratic quality of the countries concerned. Arguably, this is a shortcoming of the theoretical framework researchers have been using in the past. In the second section of the first part, the weakening of democratic quality in various countries was pointed out. Within the EU, this democratic backsliding affects Hungary and Poland in particular. In this second part of the study, these two threads are brought together and examined whether a correlation between infringements of EU law and democratic quality can actually be established. It should be noted that we have only included data up to 2019 in our analysis, as the ongoing COVID-crisis will distort all current measurable data for the time being.
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