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«Why discourse matters only sometimes: effective arguing beyond the nation-state DIANA PANKE* Abstract. Pre- and post-agreement discourses are an ...»

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Why discourse only matters sometimes 153 The European directive was mostly in line with the German public-health oriented water approach, but required additional and tougher environmental standards and allowed for fewer quality exceptions. This brought about severe domestic resistance of the German Federal Health Authority (Bundesgesundheitsamt, short: BGA) and drinking water providers who feared high expenditures and opposed the bureaucratic workload.29 In this context, the Kohl-government did seek to minimise implementation costs and was reluctant to comply with the DWD.30 Hence, the German transposition, the Drinking Water Regulation of 1986 (DWR), de facto allowed for departures from environmental quality standards and limited the applicatory scope of the DWD. The European Commission opened an infringement proceeding in 1987 (1987/0440) in response to this minimalist, cost-saving transposition. Non-compliance interests were very strong, in particular since it became clear after the German unification that the European drinking water quality standards cannot be easily met in the new Länder and would require immense investments.31 Consequently, Germany insisted on its undemanding interpretation of the DWD and the European Commission referred the case to the ECJ in 1990.

In Court, the parties disputed, firstly, under which conditions states can grant exceptions from the DWD quality standards to water providers (for example, what are ‘states of emergencies’?).32 Secondly, the parties discussed whether all quality departures have to be reported to the Commission (as a precondition for detecting implementation deficits). At the very beginning of the judicial discourse, Germany argued that deviations from the quality approach of the DWD can be justified as long as public-health standards are not juxtaposed and that there is no need to inform the European Commission from every single granted exception. The European advocate defended a broad scope of the DWD and argued for the opposite.33 Even before the judicial discourse ended in 1992 with an ECJ judgment, Germany altered its legal acts for the first issue at stake according to a demanding norm interpretation. For the second issue, legal change was already underway but had not been completed two years after the ECJ referral. Hence, the case was not withdrawn although it was practically solved, and the ECJ issued a ruling. One month later, Germany quickly abolished non-compliance with the 1992 Drinking Water Provision (DWP).34 29 Ibid.

30 T. A. Börzel, Environmental Leaders and Laggards in the European Union. Why There is (Not) a Southern Problem (London: Ashgate, 2003); C. Knill, The Europeanisation of National Administrations. Patterns of Institutional Change and Persistence (Cambridge: Cambridge University Press, 2001).

31 Interview former member of the Bundesgesundheitsamt, May 2005, interview Bundesverband der deutschen Gas- und Wasserwirtschaft, March 2005.

32 In 1990 alone, the government spent 34,300,000 DM on the improvement of drinking water quality in the new Länder (Bundestag, ‘Plenarprotokoll vom 05.12.1991’: 5465).

33 European Court of Justice, ‘Court Judgment of 24 November 1992. European Commission Against the Federal Republic of Germany Regarding the Incomplete Legal Transposition of Directive 80/778; C-237–90’, Official Journal of the European Communities, 1992 (1992), pp. I-05973; Advocate General, ‘Opinion of the Advocate General Jacobs on 12 February 1992. Incorrect Legal Transpotision of Directive 80/778 by the Federal Republic of Germany; C-237/90’, Official Journal of the European Communities, 1992 (1992), pp. I-05973.

34 Interview former member of the European Commission, March 2005.

154 Diana Panke

Explaining compliance dynamics: the judicial discourse hypothesis

How can we explain that Germany shifted into compliance during the judicial discourse? The judicial discourse hypothesis expects effective arguing, if the parties share a judicial method of interpretation that matches the complexity of the interpretational problem. The following discussion focuses exclusively on the communicational requirements for quality derogations, because this issue took longer to be solved. It analyses the arguments exchanged in the written and oral stages of the judicial discourse and inquires whether rhetorical and policy changes were absent or took place.35 The German Drinking Water Regulation (DWR) of 1986 was the initial transposition of the European DWD and did not prescribe the exchange of information between the central state and federal states. Consequently, the availability of comprehensive information on the drinking water quality and derogations thereof was not legally ensured. This constituted a window of opportunity for distributing low quality water behind the back of the European Commission. Hence, the latter repeatedly stressed that drinking water quality must be comprehensively documented. In order to ensure that water providers systematically and comprehensively collect water quality and quality derogation information and pass it on to the European Commission, the Commission urged Germany to legally regulate its domestic water quality monitoring system. By contrast, Germany regarded its decentralised quality reporting system as sufficient, although it did not systematically and comprehensively require reports on implementation data and de facto excluded permanent deviations from quality requirements. The advocates of both parties talked cross-purposes at the beginning of the judicial discourse, but shared a judicial method of interpretation matching the interpretational scope of the problem at stake later on.





Early in the judicial discourse Germany defended its transposition by using the highly specific wording method of interpretation.36 The wording of the DWD demands a ‘wholesome communication’ of failed parameters (Article 9 I, Article 10 III DWD). However, this concept was not further specified in the remainder of the European directive. The DWD was also silent on whether the procedures ensuring wholesome communication had to be spelled out in a legal rule.37 Based on the wording method of judicial interpretation, Germany argued that the DWD did not explicitly prescribe a national legal act on the collection of relevant information and the communication of derogations.38 The central concept ‘wholesome communication procedures’ is vague and not defined in the DWD so 35 Federal Ministry for Health, ‘Allgemeine Verwaltungsvorschrift zu Trinkwasser, 09.07.1992’.

36 The empirical analysis rests on a broad range of material including interviews, protocols of the ECJ case, parliamentary speeches, newspaper articles and texts of relevant legal norms. ECJ cases are often politically sensitive and issues can be classified. Accordingly, some interviewees hesitated to give detailed information on micro processes of persuasion and adaptations. Therefore, much of the evidence for policy adaptations and underlying justifications is based on primary sources rather than interviews.

37 European Court of Justice, ‘Court Judgment of 24 November 1992’. p. 24.

38 ‘The German Government goes on to argue that the directive does not require the incorporation in domestic legislation of the obligation of notification laid down by Article 9(1) and Article 10(3) of the directive on the ground that that obligation ensues directly from the directive. The obligation for the Länder to notify the Federal Government is not imposed by the directive [...]’. (European Court of Justice, ‘Court Judgment of 24 November 1992’: 25).

Why discourse only matters sometimes 155 that the interpretational scope of the issue at stake was very broad. The narrow wording instrument was ill-suited to tackle the high complexity of the contested element. In the turn of the early discourse, Germany also used the broader systematic technique and referred to a German legal institution. In putting the DWD into the context of ‘states’ loyalty towards the federation’, the German advocate argued that the Länder are practically obliged to report derogations to the central state, which renders a secondary law on communicational requirements irrelevant.39 Based on the wording method, the European advocate could not dismiss the German argument that the text of the directive was silent on whether procedures for the collection of water quality information and water quality derogations should be legalised.40 Yet, the wording of the DWD did not explicitly prescribe the German option and the European advocate did not conclude that the German transposition was in line with the directive. The European advocate did also not interpret the European directive and the German DWR in reference to the ‘loyalty towards the federation’-principle,41 but regarded the latter as irrelevant to the case42 and as functionally inadequate.43 Instead, the European advocate applied the broad directive-immanent teleological method.44 According to this line of reasoning, communicational requirements had to be legally prescribed in order to ensure the effectiveness of the European drinking water approach, since the Commission could not fulfill its monitoring function otherwise.45 In this stage of the judicial discourse, arguing was not effective and the advocates talked at cross-purposes. The text of the DWD lacked an explicit paragraph concerning whether or not states have to make legal rules to ensure complete reports on bad water quality. Since central concepts were vague, the interpretational scope of the problem was very high. Consequently, although both parties used the narrow wording method, they could not produce an intersubjectively valid interpretation. Instead of facilitating a single reading, the wording instrument of judicial interpretation allowed for two conclusions. Firstly, that the DWD did not require certain legally binding communicational mechanisms, so that the choice of how to achieve ‘wholesome communication’ was entirely up to the member states (German position). Secondly, that various monitoring and information mechanism can be used, but each of them has to ensure ‘wholesome communication’ which implicitly presumes a legal framework in order to ensure effective implementation and compliance (European Commission). The wording 39 Interview ministry of health, October 2005; Sueddeutsche Zeitung, ‘Umweltrecht ist noch nicht Umweltschutz. Der Ministerialbürokratie fehlen Überwachungs- und Kontrollmöglichkeiten’,

February 28, 1992; European Court of Justice, ‘Court Judgment of 24 November 1992’:

p. 25.

40 European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 25: (‘The obligation for the Laender to notify the Federal Government is not imposed by the directive and would, in any event, be otiose in that it already ensues from the principle of loyalty towards the Federation (Grundsatz des bundesfreundlichen Verhaltens).’).

41 Interview former member of the European Commission, March 2005; European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 23.

42 European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 23.

43 Advocate General, ‘Opinion of the Advocate General, 12 February 1992’, p. 16.

44 European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 29.

45 Advocate General, ‘Opinion of the Advocate General, 12 February 1992’; p. 16. European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 23.

156 Diana Panke method did not allow deciding which of the competing interpretations is superior.

While the broader directive-immanent teleological method and also the broader systematic one had much better fits with the complex problem and, in turn, might have provided a single interpretation, none of them was shared by both parties.

Hence, in the first stage of the judicial discourse the parties argued at crosspurposes and dissent prevailed.

The hypothesis predicts that the early judicial discourse failed to produce an intersubjectively valid norm interpretation so that Germany became not argumentatively entrapped and did not shift into compliance. In line with this, the government continued saving compliance costs and prevented major investments in 1990 and 1991.46 They opposed a demanding reporting system that comprehensively gathered all deviations form the drinking water quality – especially if derogations were long-lasting and, thus, severe problems.47 Due to the aversion to increase transparency, in particular for environmental aspects, the government and the lead ministry (the health ministry) opposed a demanding proposal of the Social-Democratic opposition on the institutionalisation of communicational channels.48 The draft included a reporting system to comprehensively collect and disseminate information on drinking water quality to the public, the central state and the European Commission.49 The government neither highlighted the merits of the European DWD nor consented with the SPD that the German DWR only incompletely dealt with the communicational requirements.50 Instead, they shifted the responsibility to local authorities, claiming that the latter were solely responsible for monitoring the water quality and derogations.51 Hence, the health ministry had not been persuaded by legal arguments exchanged before the ECJ and did not believe that the German position can no longer be argumentatively defended. In line with the absence of ideational changes, the Germany did not shift into compliance. The government did not introduce a comprehensive quality monitoring system, although a legal change concerning the other issue at stake in Court (necessary conditions for granting exceptions and the role of ‘states of emergencies’)52 would have provided a window of opportunity to do so without much additional work. The Drinking Water Regulations of 1990 (DWR) transposed the other contested issue and also specified reporting procedures on derogations in this context (Article 4 III). However, the government did not introduce a comprehensive quality reporting system. Communicational obligations for granted quality deviations were restricted to meteorological reasons associated with ‘states of emergencies’. The 1990 DWR did not require the collection and dissemination of information on derogations caused by permanent conditions, such 46 European Court of Justice, ‘Court Judgment of 24 November 1992’, pp. 1–2, 29. Advocate General, ‘Opinion of the Advocate General, 12 February 1992’; p. 16; Interview former member of the European Commission, March 2005.



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