2.2 The Second Wave: Misfit and More

The basic rationale behind the misfit argument was to reduce the complexity of analysing implementation processes by exploring how far the “institutional filter” (Knill and Lenschow 1998: 610) provided by the compatibility between EU demands and domestic policy traditions alone could explain the implementation of particular pieces of EU legislation. The assumption was that further actor-based factors needed to be taken into account only if the institutional context was not able to explain the outcomes (Knill and Lenschow 1998: 610-611; Knill and Lenschow 2001: 121-124). The main problem with this approach was that only few cases could actually be explained by an exclusive focus on the “goodness of fit”. In the empirical analysis by Knill and Lenschow (1998), only three out of eight cases conformed to the expectations gained by looking at the degree of misfit. The remainder of the cases needed to be explained by additional actor-based factors. Later studies confirmed the limited explanatory power of the “goodness of fit” (see e.g. Haverland 2000; Héritier et al. 2001; Falkner et al. 2005). In the end, therefore, it turned out that not much analytical leverage could be gained from using this “institutional filter”. Instead, most cases required “a lower level of abstraction, namely the independent analysis of the given interest constellations and the strategic interaction of domestic actors” (Knill and Lenschow 2001: 126).

One of the main weaknesses of the second wave of research was that the logic of these interactions, and the preferences of domestic actors, remained seriously under-theorised. Instead, authors often offered individual accounts of the “deviant cases” (which actually made up the majority of cases) without offering systematic theoretical arguments. What is more, while an explicit discussion of the conditions under which we could expect governments and administrations to be willing to comply (even in the face of considerable misfit) is in short supply in this strand of literature, different contributions implicitly operated on the basis of quite divergent views. The misfit argument in principle implied that domestic governments and administrations are motivated by the desire to protect their existing policy legacies and are thus expected to drag their heels on fulfilling EU policies that require fundamental changes to the domestic status quo. When having to implement European policies, national governments, administrations, and parliaments are thus seen to act as “guardians of the status quo, as the shield protecting national legal-administrative traditions” (Duina 1997: 157). This view was based on the insights of earlier research on EU decision-making, which had demonstrated that domestic governments try to export their own policy models to the European level (Héritier 1996; Héritier et al. 1996). As a result, it was argued that governments who failed to “upload” their own policies to the EU level would try to resist during the “downloading” process, when the agreed-upon measures were to be implemented (Börzel 2002). Therefore, the implementation of policies with significant misfit was either doomed to fail altogether, due to reluctant domestic governments and/or administrations (Duina 1997, 1999; Duina and Blithe 1999; Knill and Lenschow 1998, 2000a), or the unwilling state machinery needed to be forced by societal actors to comply with mismatching EU policies, probably combined with outside pressure from the Commission (Börzel 2000, 2003a, 2006).⁵

Some of the misfit-centred contributions, however, also argued that the number of veto players or, alternatively, a consensual political culture, could help overcome resistance against EU policies that implied significant adjustment costs (Risse et al. 2001; Héritier 2001; Héritier and Knill 2001). While the veto player argument was usually presented in opposition to the misfit approach (Haverland 2000), this view tried to combine both factors. It still subscribed to the basic idea that the degree of misfit was an important determinant of implementation outcomes, with mismatching policies provoking fierce domestic opposition. In contrast to scholars like Börzel, Duina, or Knill and Lenschow, however, this approach implicitly assumed that resistance would not stem primarily from governments and administrations, but from negatively affected societal interests. The number of veto points then determined whether it was likely that these reluctant societal actors would be able to impede implementation or not. While this approach represented a big step away from the mechanistic conception of the basic misfit argument, laying much more emphasis on the political contestation between reform promoters and opponents at the domestic level, it still remained unclear when to expect which domestic actors to be in favour or against the implementation of certain types of EU policies.

Like the first wave of research, many of the second-wave contributions analysed not only legal but also practical implementation (see e.g. Knill and Lenschow 1998; Duina 1999; Knill and Lenschow 2000b; Börzel 2003a). Like their predecessors, however, the second-wave authors did not systematically distinguish between factors that influence transposition and causal conditions that have an impact on enforcement and application. Typically, these contributions tended to treat the whole process of implementation as following a single theoretical logic in which the “goodness of fit” played an important role. This also meant that they ignored the different actor constellations in the different phases. Thus, scholars frequently referred to opposition to mismatching policies by the “public administration” (Börzel 2000: 224 and 225) or to “administrative resistance” (Knill and Lenschow 2000a: 261) as the main reason for problems in the implementation process as a whole. At the transposition stage, however, administrations are certainly not the only crucial actors. Instead, government representatives and political parties seem to be at least as important in a process that differs from regular domestic law-making only in that it is substantively constrained by EU framework legislation (see Figure 1). This either means that these authors had a rather bureaucratic conception of the transposition process, that they simply failed to acknowledge that the different stages involve different actors and thus also require different explanatory models, or that they considered the main problems to occur not during transposition but at the enforcement and application stage, where administrations play a crucial role.⁶ At any rate, little could be learned from this literature about the specific problems associated with transposition, enforcement and application, respectively.

"Implementing and complying with EU governance outputs" Oliver Treib http://www.livingreviews.org/lreg-2006-1

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