Domestic politics in EU policy implementation

From a domestic politics perspective, customized implementation is driven by policy “responsiveness” (Steunenberg Reference Steunenberg2019) to the preferences of domestic stakeholders or the government. First, the (non-)alignment of national government preferences with the EU policy has been identified as a driver of EU policy implementation. Disagreement of the national government with EU policies does, however, not directly result in “opposition through the backdoor” and outright noncompliance (Falkner et al. Reference Falkner, Hartlapp, Leiber and Treib2004, 456ff.; Pircher Reference Pircher2017; Thomson et al. Reference Thomson, Torenvlied and Judge2020), but the implementation of EU policies might be more subtly customized to achieve both compliance and alignment with domestic political preferences (Thomann Reference Thomann2019), or “creative compliance” (Batory Reference Batory2016, 686; Lindstrom Reference Lindstrom2021).

Second, national governments respond to stakeholders’ interests depending on the directionality of stakeholder preferences and the number of veto points in the transposition process (Steunenberg Reference Steunenberg2007; Steunenberg and Rhinard Reference Steunenberg and Rhinard2010). When national stakeholders are polarized regarding the EU policy, i.e. some demand added restrictiveness and others demand reduced restrictiveness in implementation, literal transposition is a likely outcome (Steunenberg Reference Steunenberg2007). This can be due to absent driving forces in either direction or institutional deadlock (Brendler and Thomann Reference Brendler and Thomann2024, 532–533). In contrast, customized implementation occurs under conditions of stakeholder consensus for added or reduced restrictiveness (Brendler and Thomann Reference Brendler and Thomann2024, 530–531; Fink and Ruffing Reference Fink and Ruffing2017; Skjærseth and Rosendal Reference Skjærseth and Rosendal2023; Steunenberg Reference Steunenberg2007).

In other words, customized implementation requires domestic support, either from stakeholders or the government. If national stakeholders are polarized regarding the EU policy, national policy bureaucracies have no incentive to deviate from the Directive (Kaya Reference Kaya2018; Steunenberg Reference Steunenberg2007; Thomson et al. Reference Thomson, Torenvlied and Judge2020). Under conditions of stakeholder consensus, in contrast, policy bureaucracies can use EU policies as a window of opportunity for national policy reforms (Falkner et al. Reference Falkner, Hartlapp, Leiber and Treib2004, 461ff.; Fink and Ruffing Reference Fink and Ruffing2017).

However, we still know very little about how national “policy bureaucracies” (Page and Jenkins Reference Page and Jenkins2005) in charge of drafting transposition measures, i.e. lead ministries or agencies, weigh domestic political demands for customization against EU legal requirements. In strongly Europeanised policy fields (such as waste policy), policy bureaucracies pursue both substantive policy goals within their jurisdiction and the goal of EU policy implementation (Mastenbroek and Princen Reference Mastenbroek and Princen2010) and try “to reconcile domestic political demands with EU legal requirements” (Mastenbroek Reference Mastenbroek2017, 1302) in transposition. How national bureaucracies approach EU implementation is therefore important to understanding customized implementation (Eriksen Reference Eriksen2023; Logmani et al. Reference Logmani, Krott, Lecyk and Giessen2017; Pollex and Ruffing Reference Pollex and Ruffing2024).

This article therefore focuses on the role of national policy bureaucracies as important actors in policy formulation and implementation (Hartlapp, Metz, and Rauh Reference Hartlapp, Metz and Rauh2013; Page Reference Page2012; Schnapp Reference Schnapp2004). Not only does the proposal of the lead ministry set the framework for inter-ministerial coordination and legislative procedures, but it also often prevails in inter-ministerial coordination (Hartlapp et al Reference Hartlapp, Metz and Rauh2013, 438), and important transposition measures can be taken through regulatory acts without parliamentary approval (cf. Page Reference Page2012, 19ff.; Steunenberg and Rhinard Reference Steunenberg and Rhinard2010). This power to shape public policies is based on the bureaucrats’ competencies and the limited capacity of political executives to get involved in individual drafting processes (Hood and Lodge Reference Hood and Lodge2006; Page Reference Page2012, 14).

From a bureaucratic politics perspective, this article argues that national lead ministries propose customized or literal EU policy implementation depending on domestic politics using strategies of risk and blame avoidance and reputation seeking. In the absence of a political driving force for customized implementation, the lead ministry has no incentive to deviate from the EU policy. However, if stakeholders or the national government prefer customization, the policy bureaucracy weighs the potential benefits and risks of customized implementation. The relevance of reputational risks depends on the alignment of the EU policy with the national political agenda (cf. Busuioc and Lodge Reference Busuioc and Lodge2017). They will only customize EU policies in line with their substantive policy goals if they can link the EU policy to an ongoing national policy process (cf. Bondarouk et al. Reference Bondarouk, Liefferink and Mastenbroek2020; Dimitrova and Toshkov Reference Dimitrova and Toshkov2009; Fink and Ruffing Reference Fink and Ruffing2017; Spendzharova and Versluis Reference Spendzharova and Versluis2013; Thomann Reference Thomann2019), and otherwise prioritize compliance over substantive goals resulting in literal implementation.

Bureaucratic strategies as an underlying mechanism of customized implementation

National policy bureaucracies are often faced with a goal conflict in EU policy implementation. This goal conflict depends on the alignment of domestic preferences with the EU policy and the discretion the EU policy grants the member states in implementation (Princen et al. Reference Princen, Frank Schimmelfennig, Smekal and Zbiral2024; Steunenberg and Toshkov Reference Steunenberg and Toshkov2009; Thomann Reference Thomann2019, 29). Goal conflict is low when domestic preferences are aligned with the EU policy or member state discretion is high because customized implementation can then be reconciled with compliance. Under conditions of low goal conflict, implementation outcomes mostly depend on administrative capacity and institutional misfit (Matland Reference Matland1995; Thomas Reference Thomas2018). Goal conflict is high, however, where member state discretion is low and domestic preferences are not aligned with the EU policy. Under such conditions, implementation outcomes are driven more by domestic politics (Matland Reference Matland1995; Thomann Reference Thomann2019, 207ff.).

This article argues that national policy bureaucracies deal with high goal conflict in EU policy implementation using strategies of blame avoidance and reputation seeking. For example, customized implementation can be the result of turf-protective behavior of national bureaucracies (Logmani et al. Reference Logmani, Krott, Lecyk and Giessen2017; Pollex and Ruffing Reference Pollex and Ruffing2024) or blame avoidance strategies (Kaya Reference Kaya2018; Kriegmair et al. Reference Kriegmair, Rittberger, Zangl and Heinkelmann-Wild2022; Thomson et al. Reference Thomson, Torenvlied and Judge2020). From a bureaucratic politics perspective, this is because policy bureaucracies strive for legitimacy and resources as a prerequisite to effectively achieve their policy goals (e.g. Bach and Wegrich Reference Bach, Wegrich, Bach and Wegrich2019; Busuioc and Lodge Reference Busuioc and Lodge2017; Carpenter and Krause Reference Carpenter and Krause2012; Hood Reference Hood2011). They also pursue these goals in EU policy implementation.

Focusing on the goal of organizational legitimacy, transposition of EU policies is risky for national policy bureaucracies under conditions of high goal conflict because they are obligated to implement a policy over which they have limited influence. The transposition measures can attract blame from the EU commission, national stakeholders, or national political executives for noncompliance with EU law or for not making (sufficient) use of discretion in implementation. Such “accountability politics” (Hart and Wille Reference Hart, Anchrit, Guy Peters and Pierre2012, 8) can have important consequences for the internal and external legitimacy of policy bureaucracies and thereby their ability to effectively pursue their policy goals (Busuioc and Lodge Reference Busuioc and Lodge2017).

Policy bureaucracies (here: lead ministries) have a clear interest in customization when their preferences and stakeholder preferences align as a driving force. They benefit from responding to domestic preferences by taking credit for the EU policy or by using it as a window of opportunity to advance national policy goals (cf. Fink and Ruffing Reference Fink and Ruffing2017). Most often, domestic preferences on EU policies do, however, not align. Customization will attract blame from at least one party under such circumstances. Literal transposition then allows the lead ministry to shift blame for the unpopular policy to the EU Commission (Kriegmair et al. Reference Kriegmair, Rittberger, Zangl and Heinkelmann-Wild2022). Consequently, the policy bureaucracy must carefully weigh the risks and benefits of customized implementation when domestic preferences diverge.

This article argues that the trade-off between risks and benefits of customized implementation for national lead ministries depends on the alignment of the EU policy with the national political agenda. EU policies can be aligned with the national political agenda in terms of (1) substantive national policy discourse (on issue linkage: Falkner et al. Reference Falkner, Hartlapp, Leiber and Treib2004, 461–463), (2) timing of legislative or regulatory processes (Goetz Reference Goetz2009) or (3) support from national political executives (Page Reference Page2012). First, when the design of the EU policy instrument is considered a suitable solution to the policy problem, the lead ministry can mobilize political support for customization by linking implementation measures to the national discourse. Second, an ongoing legislative or regulatory process in the policy area reduces political hurdles to include customization measures. Third, political executives tend to pay more attention to transposition processes that are high on their political agenda providing political support for customization measures (Gilad Reference Gilad2015; Page Reference Page2012, 154–155). Consequently, lead ministries have an incentive to customize EU policies in response to their preferences when the EU policy is aligned with the national political agenda (cf. Bondarouk et al. Reference Bondarouk, Liefferink and Mastenbroek2020; Spendzharova and Versluis Reference Spendzharova and Versluis2013), i.e. when the potential benefits are worth the risk. This is because they can take credit for the customization measures, advance national policy reforms, or at least they have political support to deal with potential blame. If the EU policy is not aligned with the national political agenda, in contrast, policy bureaucracies have no incentive to take the risk of customized implementation. Even if the lead ministry substantively prefers customized implementation, such a policy proposal risks attracting blame from stakeholders or political executives, or even failing in the legislative process. The presumed mechanism is presented in Figure 1.

Figure 1.

Bureaucratic strategies in customized implementation.

Source: Own illustration.

Note: The arrow reads as the presumed relation of sufficiency. The combination of a national driving force (government or stakeholders) and high alignment of the EU policy with the national political agenda is sufficient for customized implementation. The absence of either condition is sufficient for literal implementation. The underlying mechanism is different bureaucratic strategies (such as risk and blame avoidance, turf protection, reputation seeking). The meaning and relevance of these strategies depend on administrative context (Goertz Reference Goertz1994, 25ff.).

What is considered a risk, and a legitimate bureaucratic strategy depends on the national administrative context. For example, in administrative systems with a strong legalist tradition, the risk of being blamed for noncompliance with EU law will be valued more highly than in other countries and the bureaucracy will rely more on legal arguments to justify their implementation measures. Similarly, in strongly politicized administrative systems, customization is a more acceptable strategy to implement national political goals at the risk of EU noncompliance by relying on arguments around political effectiveness and feasibility. Nevertheless, the underlying mechanism of risk and blame avoidance remains conceptually the same despite its context-dependent character (on “context as changing meaning” see Goertz Reference Goertz1994, 25ff.; Falleti and Lynch Reference Falleti and Lynch2009, 9).

The role of blame avoidance and reputation seeking in customized implementation is illustrated in a comparative case study. The case selection and data are presented in the following section.

Case selection

The Single-Use Plastics Directive (EU/2019/904) (SUPD) introduces a mix of policy instruments including a ban on certain single-use plastics (SUP) products for which alternatives are available (such as straws, cotton bud sticks and plates), a minimum quota for recycled plastics in PET bottles, separate collection targets for PET bottles, and an Extended Producer Responsibility (EPR) scheme for certain SUP products most often found at the EU coastal lines. The SUPD aims to reduce littering as a form of environmental pollution and to reduce the production of single-use plastics as a source of micro-plastics pollution.

This article analyses the implementation of the EPR scheme for certain SUP products (Art. 8 SUPD). According to Art. 8 SUPD, the producers of certain SUP products for which no alternative is currently available such as tobacco filters, beverage bottles and cups, to-go food containers, flexible food wrappers, wet wipes, and balloons (SUPD Annex E) should cover the external costs of public cleaning related to these products. These include the costs of waste collection, transport and treatment in public areas, litter clean-up measures, awareness raising, data collection and reporting, and administrative costs. For this purpose, the costs shall be determined in a cost-efficient and transparent way, and not exceed the necessary costs to provide these waste management services. The EPR measures shall apply from 5 January 2023 for tobacco filters, and from 31 December 2024 for the other SUP products.

This provision is a case of limited flexibility in implementation. The provision details specific types of costs to be borne by the producers of specific types of SUP products. Some de facto flexibility persisted only regarding the interpretation and measurement of the costs and the identification of concerned SUP products. These remained for the member states to specify (“elaboration discretion” (Van den Brink Reference van den Brink, Garben and Govaere2017)) in the absence of the promised EC guidelines. The scope of Art. 8 SUPD is limited to the listed types of SUP products. An extension of the scope (“scope discretion” (Van den Brink Reference van den Brink, Garben and Govaere2017)) is generally possible under the Waste Framework Directive but does not result directly from the SUPD. The provision does also not grant the member states flexibility to adopt stricter standards (Dolde Mayen and Partner 2021; but critically: Frenz Reference Frenz2019).

To explain why the same EU policy instrument was customized in France but not in Germany, this article provides an in-depth comparative case study on the transposition of Art. 8 SUPD in both member states using a “set-relational absence-of-Y comparison for sufficiency” (Rohlfing Reference Rohlfing2012, 120ff.). It modifies the theoretical claim that the presence of a national driving force for customization is sufficient for customized implementation by identifying the alignment with the national political agenda as a missing conjunct. Following a logic of difference, cases were selected based on their similarity in potential explanatory factors and difference in implementation to identify a missing factor that differs between the two cases. The case characteristics are summarized in Table 1.

Table 1.

Case characteristics

Source: Own compilation.

Note: * In 2019, the Ministry had also responsibilities for social and infrastructure policies.

Both France and Germany are most-likely cases (cf. Rohlfing Reference Rohlfing2012, 84ff.) for customized implementation in response to government preferences. Both national lead ministries support the EU policy goal and customized implementation is frequent in both countries. The national governments are therefore likely to act as a driving force for added restrictiveness.

In both cases, the national government and the lead ministry generally support the EU policy goal to reduce the negative impact of SUP (BMUV 2022, 1; BMUV 2018; Gouvernement Français 2018; Ministère de la Transition Ecologique 2022). Both governments contributed actively to the development of the SUPD at the EU level and voted in favor of the Council of the EU (Council of the EU 2019). Substantively, both lead ministries prefer stricter policies in this area such as an extension of the scope to other single-use products to reduce littering beyond the limited focus on plastics and an extension of cost coverage to provide an effective incentive for producers to reduce single-use plastics production (Ministère de la Transition Écologique 2022; Petersen Reference Petersen2022).

These lead ministry preferences for added restrictiveness combined with the limited discretion granted by the EU provision make the implementation of Art. 8 SUPD a case of high goal. The goal conflict is that added restrictiveness along domestic preferences risks noncompliance with EU law given the limited discretion and ambiguity of the provision (Dolde Mayen and Partner 2021; Frenz Reference Frenz2019). Consequently, the implementation of the SUPD is a most-likely case for “political implementation” (Matland Reference Matland1995), i.e. customized implementation is mainly driven by domestic politics.

Second, customized implementation is common in both countries (Page Reference Page2012; Thomann Reference Thomann2019, 94ff.; Zgaga et al. Reference Zgaga, Thomann and Goubier2024), especially in environmental policy (Thomann and Zhelyazkova Reference Thomann and Zhelyazkova2017, Figure 1). Whereas the German government used to encourage added restrictiveness in environmental policy, it has emphasized the need for harmonized rules in the internal market in more recent years (Page Reference Page2012, 77). In the context of bureaucratic reforms to reduce red tape, the German government therefore introduced the so-called “one in, one out” policy (cf. BMUV 2022), according to which additional red tape caused by a new policy shall be compensated elsewhere in the same jurisdiction. To reduce incentives for over-implementation, this includes over-implementation of EU policies but not literal transposition. Against a similar discussion in France, Prime Minister Edouard Philippe issued a memo (circulaire) in 2017 making customization require justification (Premier Ministre 2017). Over-transposition is widespread in France in various sectors, mostly based on regulatory acts without parliamentary scrutiny, and was perceived as a potential threat to competitiveness of the French economy (Danesi Reference Danesi2018, 63).

Despite these recent attempts at limiting over-implementation, customized implementation is a likely outcome in both cases when the national government prefers added or reduced restrictiveness compared to the EU policy.

Alternative explanations of customized implementation include stakeholders acting as a driving force for customization (Brendler and Thomann Reference Brendler and Thomann2024; Kaya Reference Kaya2018; Steunenberg Reference Steunenberg2007; Thomson et al. Reference Thomson, Torenvlied and Judge2020), institutional misfit between the EU provision and national policies (Börzel Reference Börzel2000; Knill Reference Knill1998; Knill and Lenschow Reference Knill and Lenschow1998), media salience of the policy (Spendzharova and Versluis Reference Spendzharova and Versluis2013), and the administrative capacity of national bureaucracies (Lindstrom Reference Lindstrom2021; Zgaga et al. Reference Zgaga, Thomann and Goubier2024). These factors can be ruled out because both cases are most similar in this regard.

In both cases, stakeholders did not act as a clear driving force for customization, the implementation is a case of low institutional misfit, the EU provision offered limited flexibility to national bureaucracies, and national administrations have high administrative capacity for the implementation of EU environmental policies (see Table 1). These factors can therefore not explain the difference in implementation.

First, stakeholders do not act as a clear driving force for customization. EPR schemes are a re-distributional policy instrument, which is why stakeholders are polarized on the issue: Whereas producers seek to minimize their eco-fees and to get exemptions for their products, municipalities, other beneficiaries, and environmental associations seek to maximize financial support for their cleaning services and to extend the scope. Stakeholder preferences are therefore not tendential towards added or reduced restrictiveness.

Second, the implementation of Art. 8 SUPD is a case of low institutional misfit between the EU policy and the national “regulatory style” (Knill Reference Knill1998, 5). Both member states have established national EPR schemes since the 1990s and under the EU Waste Framework Directive (WFD; EU/2018/851). In contrast to existing EPR schemes, the newly introduced EPR scheme for SUP products addresses waste found in public areas rather than collected directly from households. Both countries were therefore required to create a new EPR scheme or extend an existing one to the concerned SUP products and the refinancing of littering costs. The SUPD allows the French government to continue its hierarchical approach to EPR design and Germany to rely more on self-regulationFootnote ¹.

Third, media salience of the implementation of Art. 8 SUPD was low in both countries. According to a Factiva search, only a few news articles were published in both countries covering the implementation of the EPR scheme for SUP over the four years from the EU policy initiative in 2019 to the transposition deadline in 2023. Low media salience makes it a most-likely case for high bureaucratic influence because political executives tend to focus their attention on issues that are salient to them and the media (cf. Page Reference Page2012).

Finally, France and Germany are experienced implementers of EU waste policy as EU founding members and have high administrative capacity in the environmental administration. Because high administrative capacity is present in both cases, this case study is indeterminate regarding this factor. A lack of administrative capacity could potentially undermine the proposed mechanism: If policy bureaucracies do not have the necessary expertise or resources, they might not be able to pursue their strategies (Lindstrom Reference Lindstrom2021; Thomas Reference Thomas2018; Zgaga et al., Reference Zgaga, Thomann and Goubier2024). High administrative capacity is therefore a scope condition (cf. Ragin Reference Ragin2000, 61–62) of this study.

Data

The analysis is based on a qualitative content analysis of policy documents (inspired by Kuckartz Reference Kuckartz2014). Transposing legislation and regulatory acts, ministerial drafts with a motivational statement of the lead ministry, and governmental strategies provided insights on the prioritization of policy goals and policy preferences. In addition, position papers from stakeholders and commissioned scientific studies were analyzed regarding support for and opposition to customized implementation.

The document analysis was complemented by 23 semi-structured expert interviews (cf. Kruse Reference Kruse2015, 166ff.). Interview partners were selected based on their involvement in the national transposition process of the SUPD in Germany or France and their expertise in EPR schemes or the governance of plastics. These include policy bureaucrats at the national level and interest group representatives. The interviews broadly reflect the involvement of different actors in the French and German stakeholder consultations.

Although the analytical focus is on bureaucratic strategies, few bureaucrats are among the interviewees because only a small number of bureaucrats were involved in drafting the transposition measures. Because they were promised anonymity, their responses cannot be presented separately from those of stakeholders in the case descriptions. Nevertheless, the stakeholder perspective is valuable because the interviewees were less prone to social desirability bias when asked about bureaucratic preferences and provided important insider knowledge on underlying domestic politics. As the interviews were conducted during the drafting processes, the stakeholders could report first-hand about the consultation. The stakeholder interviews thus served to validate and complement the bureaucratic perspective derived from the document analysis and interviews.

The interviews were conducted between July 2022 and February 2023 in the respective national languages and lasted 30 to 60 minutes. To understand the national transposition processes, the interviewees were asked to describe the legislative and regulatory processes to implement the EPR scheme for SUP in their member state, who the most important actors were in this process and how they perceived their roles in the process. In a second part, the interviews dealt with the design of the EPR scheme. Questions included where, from the interviewee’s perspective, the national transposition exceeded EU requirements, the presumed reasons for customized or literal transposition, and their opinion on this decision. With the consent of the interviewees, the interviews were recorded and transcribed, except one.

The data was analyzed in three steps. First, the transposition documents were coded regarding literal or customized implementation of the provision. The operationalization of customized implementation is detailed in the next section.

Second, government strategies and statements, stakeholder submissions to the consultation and the interview transcripts were coded regarding the transposition preferences of the government and stakeholders. Demands for added or reduced restrictiveness of the EU provision were coded as preference for customization. Demands for harmonized rules in the EU internal market and literal transposition were coded as preference for literal transposition.

Third, governmental strategies, the motivational statement of the lead ministry and the interview transcripts were analyzed regarding the bureaucratic strategies pursued. For this purpose, I coded whether (national) substantive policy goals or timely and correct policy implementation were prioritized in transposition. The bureaucratic strategies – risk and blame avoidance and reputation seeking – were coded based on the coding scheme in Table 2.

Table 2.

Operationalization of bureaucratic strategies in customized implementation: reputation seeking and risk and blame avoidance

Source: Own compilation.

The alignment of the EU policy with the national political agenda was added inductively as a coding category. It was constructed as a three-dimensional concept: substantive alignment of the EU policy with the national policy discourse, alignment in terms of timing of the legislative or regulatory process, and alignment with national government priorities. Based on governmental strategies, the motivational statement of the lead ministry, stakeholder submissions in the consultation, think tank reports, and the interview transcripts, I coded whether the design of Art. 8 SUPD was considered suitable to reduce littering and SUP production, political and administrative hurdles to the legislative or regulatory transposition process, and the perceived extent to which the SUPD implementation was supported by national political executives.

EPR scheme for SUP products: literal vs customized implementation

“Customised restrictiveness occurs along an instrument’s personal, substantive and/or temporal scope of application.” (Thomann and Zhelyazkova Reference Thomann and Zhelyazkova2017, 1277) The EPR scheme in Art. 8 SUPD is limited to the products listed in Annex E. Customized implementation in terms of personal restrictiveness would therefore mean an extension to additional products or an exemption. Secondly, customized substantive restrictiveness in this context would mean extending or reducing the cost coverageFootnote ² as described in Art. 8 (2)–(3) SUPD. Customization in temporal restrictiveness would mean deviating from the application deadlines. To evaluate whether such measures are legally compliant with EU law is beyond the scope of this study.

To implement this EPR scheme for SUP products, the German Ministry for the Environment (BMUV) published a draft law in March 2022 to establish a SUP fund (Einwegkunststofffondsgesetz) administered by the German Environment Agency (UBA), where the producers of concerned SUP products will register and pay a special levy (Sonderabgabe mit Finanzierungsfunktion) based on their market shares. The payments shall then be used to refinance the SUP-related public waste management including the administration of the fund. The cost structure for the SUP fund is detailed in a decree (Einwegkunststofffondsverordnung) which was developed and will be reviewed in consultation with a SUP commission (Einwegkunststoffkommission) constituted of stakeholder representatives. The law was adopted in May and the decree in October 2023 for the SUP fund to apply from 1 January 2024. Despite some disputes among stakeholders and marginal editorial changes, this transposition corresponds to literal implementation of Art. 8 SUPDFootnote ³.

In contrast, the policy was extensively customized in France regarding added restrictiveness. In France, Art. 8 SUPD was transposed in the Circular Economy Law of 2020 (Loi anti-gaspillage et pour une économie circulaire) where the existing EPR scheme for household packaging was extended to include public cleanliness costs and new EPR schemes were introduced for the concerned SUP products such as tobacco products and wet wipes. The individual EPR schemes are detailed in a décret and a so-called arrêté portant cahier des charges from the Ministry of Ecological Transition, more specifically the Directorate for risk prevention (Direction Générale de la prevention des risques (DGPR)), outlining the mission and cost model. In response to this arrêté, the industry concerned presents a joint dossier to demand the state accreditation of at least one producer responsibility organization (PRO; éco-organisme). This dossier is then evaluated by the DGPR, and the PRO will be accredited by an arrêté portant agrément d’un éco-organisme for a period of usually six years. These regulatory acts are submitted to an intersectoral EPR Commission (Commission inter-filière REP (CiFREP)) affiliated with the DGPR and uniting various stakeholders for an advisory opinion and to a public consultation. Adding to the scope of the SUPD, the French EPR schemes to refinance littering costs cover all household packaging and all tobacco products instead of only those containing SUP. Furthermore, France has introduced an additional ban on packaging for fresh fruit and vegetablesFootnote ⁴ and an EPR scheme for littering costs related to chewing gums. The EPR schemes for refinancing littering costs apply earlier than required by the SUPD. The French transposition therefore corresponds to added restrictiveness in terms of personal and temporal scope.

The following subsections present the bureaucratic strategies pursued in both cases.

Germany: Literal transposition as a risk and blame avoidance strategy

In Germany, the EPR scheme was transposed literally, although, substantively, the BMUV would have preferred customized implementation. To transpose Art. 8 SUPD, the BMUV had originally proposed an extended scope of the littering fund under the former minister, but no political consensus could be reached despite the support from experts and environmental stakeholders (Petersen Reference Petersen2022; ZEUS and Öko-Institut 2020). Interviewees also stressed the willingness of the German government to achieve an extension of the EPR scheme at the EU level if it proves a successful policy instrument (DE_I3; DE_I12). Nevertheless, the BMUV chose to first implement the SUP fund strictly as required by EU law (DE_I3; DE_I6) to ensure timely and correct application of the SUPD (DE_I2; DE_I3; DE_I6) and to avoid potential blame from stakeholders.

First, literal transposition was a strategy to avoid the risk of noncompliance. In the absence of EC transposition guidelines, the compliance of added restrictiveness in substance is questionable from a legal perspective given the provisions in Art. 8 SUPD (DE_I11; Dolde Mayen and Partner 2021 Footnote ⁵; Frenz Reference Frenz2019; von Westphalen Reference von2021). Under EU state-aid law, the member state is obliged to provide evidence that the additional measure effectively contributes to environmental protection, which was deemed difficult to establish in this case due to a lack of data. Added restrictiveness in scope would have required justification weighing added environmental protection against restrictions on the internal market. Due to this legal uncertainty, literal transposition allowed the BMUV to avoid the risk of noncompliance with EU law.

Second, literal transposition was a strategy to avoid delayed application of Art. 8 SUPD. The implementation deadlines were considered very ambitious, and Germany was already late in transposition for several reasons: 1. the change in government following the federal elections shortly after the SUPD adoption, 2. the high workload of transposing the numerous SUPD provisions within the jurisdiction of a single policy unit, and 3. the legal complexity of Art. 8 without the promised EC transposition guidelines (DE_I2; DE_I3; DE_I5; DE_I6; DE_I12). The BMUV therefore could not afford to waste any more time in the legislative process by proposing controversial measures. Literal transposition allowed them to point to the legal requirement to transpose the Directive correctly and on time.

Third, literal transposition was a strategy to avoid potential blame from stakeholders. The implementation of Art. 8 SUPD was highly controversial among stakeholders, most importantly regarding substance and scope. The limitation of the EPR scheme to the SUPD scope has been criticized by environmental associations as ineffective to reduce littering because it does not prevent substitution effects. Some industries are investing in technological research to produce single-use products outside the scope of the SUPD such as paper-based tobacco filters or coffee cups to circumvent the EPR scheme with questionable environmental consequences (DE_I4; DE_I8). Regarding the substance, municipalities and other beneficiaries argue for higher eco-fees to refinance their cleaning services. In contrast, producers shift the responsibility for littering costs to consumers and some industries even fear existential consequences of high compliance costs (DE_I5; DE_I6; DE_I7; DE_I8; DE_I9):

In this context of legal uncertainty, time pressure, and stakeholder polarization, the BMUV prioritized timely and correct transposition over national environmental policy goals. The motivational statement of the draft law emphasizes the primary goal to implement the EU provision literally (BMUV 2022). This intent of literal transposition was also emphasized by stakeholders:

To ensure and provide proof to stakeholders that the proposed transposition measures do not exceed EU requirements, the BMUV relied on extensive external expertise: 1. to identify legal options to implement Art. 8 SUPD in compliance with both EU and national constitutional law (Dolde Mayen and Partner 2021), and 2. to develop a cost model for the fund with close involvement of the concerned stakeholders (UBA 2022). In other words, the BMUV made a tremendous effort to avoid the risk of noncompliance and to manage the diverse expectations of stakeholders.

The BMUV was unable to implement their preference for customized implementation and pursued a blame avoidance strategy because the EU provision did not align with the national political agenda. The timing was unfavorable as the adoption of the SUPD was shortly before the German parliamentary elections (DE_I6). To meet the transposition deadline, the BMUV had to start preparing the transposition measures for adoption under the new legislative term with uncertainty about the incoming government’s preferences. When the new coalition government entered office, it first had to find its feet contributing to time pressure during implementation. In the coalition agreement, plastics governance and circular economy were not among the top priorities (SPD, Grüne and FDP Reference SPD2021). The BMUV was therefore left without a national policy initiative to which to link the implementation measures. Under these circumstances, the BMUV pursued a blame avoidance strategy resulting in literal transposition despite their preference for stricter implementation.

France: over-implementation as a reputation-seeking strategy

In France, the implementation of the SUPD exceeded EU requirements in line with lead ministry preferences. The French Ministry of Ecological Transition prioritized the implementation of the national circular economy objectives of the Stratégie 3R (Ministère de la Transition Ecologique 2022) over correct implementation of the SUPD. According to the motivational statement, the Circular Economy Law contributes to climate change mitigation rather than the implementation of EU law (Gouvernement Français 2020). In this vein, it aims to advance the circular economy in France beyond the comparatively small issue of plastics (cf. Gouvernement Français 2019, 127). Because littering is not restricted to SUP products, it was considered consequential to extend the scope of the EPR schemes to other single-use materials (FR_I6; FR_I9). Even more, the EPR schemes for tobacco filters and household packaging related to littering costs are envisioned as a model to expand to all other French EPR schemes in the future (FR_I11). The French government accepted the risks of noncompliance with EU law and blame from stakeholders to build a reputation as a leader against plastics pollution.

First, the risk of noncompliance with EU law was barely considered and rather tacitly accepted. Because the general trend in EU circular economy policy is increasingly dense and restrictive (DE_I5) and the EC had so far been reluctant to take legal action against countries exceeding EU requirements in this policy area (DE_I6), the risk of an infringement procedure was deemed de facto very limited at the time. When the tobacco industry disputed the regulatory act detailing the EPR scheme for tobacco products, the Conseil d’État declared it compliant with the Circular Economy Law without checking compliance with EU law (Conseil d’État Reference d’État2022).

Second, the French government benefited from the ongoing legislative process of the Circular Economy Law to transpose Art. 8 SUPD, which allowed them to anticipate and implement it long before the transposition deadline. The resource-intense process of creating and modifying EPR schemes for the involved policy unit and the CiFREP (FR_I8; FR_I11) creates an incentive to anticipate EU policy changes to reduce the number of regulatory modifications and to be able to actively participate in the development of EU policies based on practical experience (FR_I7; FR_I10). The French government sought to build a reputation as a pioneer in EPR scheme design and circular economy more generally by anticipating and shaping EU policy (FR_I9; FR_I10; FR_I11):

Third, the integration of the legal basis for the transposition of Art. 8 SUPD in the Circular Economy Law allowed the French Ministry of Ecological Transition to transpose the EPR scheme “under the radar” (FR_I1; FR_I6; FR_I8). Because many other measures in this reform drew stronger attention from stakeholders such as the deposit-refund system for the recycling of beverage containers (FR_I1; FR_I2; FR_I7; FR_I11) and the EPR system for commercial packaging (FR_I2; FR_I8), some stakeholders became aware of the implications of the EPR scheme for SUP only after the adoption of the Circular Economy Law (FR_I5). The French government accepted the following blame from stakeholders in the form of lawsuits.

The Ministry of Ecological Transition was able to pursue this reputation-seeking strategy because the implementation of Art. 8 SUPD coincided with a national political agenda for stricter plastics regulation. The timing of the transposition was favorable because the legislative process for the Circular Economy Law was in full swing. It was precisely timed to match the adoption of the SUPD at the EU level. In addition, plastics governance was high on the agenda of political executives. Not only did the French government create an ambitious circular economy strategy (Gouvernement Français 2019, 11) with the Feuille de Route pour une économie circulaire (FREC; Gouvernement Français 2018) and the Stratégie 3R (Ministère de la Transition Ecologique 2022), the goals to advance the circular economy in France and to act on plastics pollution also had strong political support from the French Environment and Economics Ministers (Gouvernement Français 2019, 8). This alignment of the EU provision with the national political agenda allowed the Ministry of Ecological Transition to pursue customized implementation and to accept blame from stakeholders with the support of political executives.