Journal
JOURNAL OF EUROPEAN PUBLIC POLICY
Volume 30, Issue 12, Pages 2623-2642Publisher
ROUTLEDGE JOURNALS, TAYLOR & FRANCIS LTD
DOI: 10.1080/13501763.2022.2125047
Keywords
Compliance; differentiated integration; European Union; legal certainty; national 'wiggle room'; implementation
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This article analyzes the issue of incorporation of EU law, highlighting the potential problem of legal certainty caused by different modes of incorporation in complex environments. Using a Norwegian case as an example, it reveals the impact of political influence and differentiated integration on legal certainty.
In the European Union, non-compliance with EU law and uneven protection of rights may be caused by differentiated policy implementation, potentially creating a problem of legal certainty. A Norwegian 'scandal' caused by the misapplication of EU law provides a case in point. To analyse the case, this article outlines an instrumental, an advocate and a conciliatory mode of incorporation, showing how these give rise to different assumptions about how agencies incorporate EU law and why they sometimes err. Under conditions of complexity, the instrumental mode of incorporation may be unable to ensure legal certainty. The Norwegian scandal is explained as the result of undue political influence and the fact that differentiated integration gives rise to the illusion of a national 'room for manoeuvre'. Hence the explanatory value of the advocacy mode. The conciliatory mode of incorporation recommends itself as a way of ensuring legal certainty in complex orders.
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