Three modes of administrative behaviour: differentiated policy implementation and the problem of legal certainty

Abstract

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.

Three modes of administrative behaviour: differentiated policy implementation and the problem of legal certainty