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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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47 Bundestag, ‘Plenarprotokoll vom 19.04.1991. Anfrage zu Wasserversorgungsanlagen in den neuen Bundesländern’, p. 396.

48 Interview former member of the Bundesgesundheitsamt, May 2005.

49 Sozialdemokratische Partei, ‘Antrag zur Sanierung der Trinkwasserversorgung in den neuen Bundesländern, 06.11.1991’.

50 Bundestag, ‘Plenarprotokoll 12/64 vom 05.12.1991’, pp. 5455–468.

51 Ibid.

52 Sozialdemokratische Partei, ‘Antrag zur Sanierung der Trinkwasserversorgung in den neuen Bundesländern, 06.11.1991’.

Why discourse only matters sometimes 157 as the texture of the soil (geogen reasons).53 Excluding this sub-type was important, since geogen quality deviations were more durable than short-term meteorological ones and consequently brought about more severe and costly drinking water quality problems. A comprehensive reporting system would have uncovered all instances of poor drinking water quality. This would have increased pressures on water suppliers and the government to invest additional resources and would have multiplied compliance costs.54 Thus, in line with the failed early judicial discourse on the quality reporting system, the 1990 DWR only entailed an incomplete quality monitoring system and required no reports for long-term derogations that were caused by the texture of the soil.

The 1990 DWR did not solve the issue on the proper communication procedure and the judicial discourse continued.55 Yet, due to the legal changes with the 1990 DWR (that had been introduced to transpose the other issue at stake in Court), the discourse shifted substantially. It moved from the

Abstract

and complex question of whether reporting requirements should be legally prescribed in general, to the more concrete and far less complex issue of what to do with derogations caused by the texture of the soil.56 Since this issue was explicitly referred to in Article 9 I DWD and this Article did not introduce new and ambiguous concepts, complex exceptional clauses or linkages to other parts of the DWD, the interpretational scope of this problem was narrow. The parties debated whether geogen derogations must also be reported to the European Commission (position of the Commission), or whether the communicational obligations refer only to quality derogations that were caused by meteorological ‘emergencies’ (German position). Again, the implications were important, since the number of reported derogations and potential costs for water providers were much higher for the former than for the latter option.57 The wording of the crucial Article 9 I DWD

states:

Member States may make provision for derogations from this Directive in order to take account of: (a) situations arising from the nature and structure of the ground in the area from which the supply in question emanates. Where a Member State decides to make such a derogation, it shall inform the Commission accordingly within two months of its decision stating the reasons for such derogation; (b) situations arising from exceptional meteorological conditions. Where a Member State decides to make such a derogation, it shall inform the Commission accordingly within 15 days of its decision stating the reasons for this derogation and its duration.

The European advocate applied the wording method to the German DWR and the European DWD.58 Based on this, the European advocate argued that Article 9 DWD grants specific, but not general geogen exceptions and that only specific 53 For reasons of space, this article focuses on the communicational requirements. The other issue (‘states of emergency’ as precondition for exceptions) was solved early in the judicial discourse. The advocates shared the narrow wording method that fitted the low complexity of the problem at stage from early on and Germany quickly shifted into compliance. C.f. Advocate General, ‘Opinion of the Advocate General, 12 February 1992’. p. 11.

54 European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 31.

55 Interview Bundesverband der deutschen Gas-und Wasserwirtschaft, March 2005.

56 European Court of Justice, ‘Court Judgment’. p. 4–5.

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

58 Interview former member of the Bundesgesundheitsamt, May 2005.

158 Diana Panke exceptions from drinking water quality standards, which are caused by soil-related problems, can be approved.59 Consequently the wording of the DWD demands that information on all quality deviations has to be collected and communicated to the Commission.60 Initially, the German advocate did seek to justify the exemption of soil-related quality deviations from strict communicational requirements and referred to the wording of Art.9I DWD.61 Yet, Article 9 DWD precisely addressed the issue of what to do with derogations and was not compatible with the 1990 DWR and the initial German position.62 The wording method of judicial interpretation only allowed for one conclusion of how to understand the communicational obligations of the DWD: all instances of poor quality have to be reported.63 By contrast, the non-communication of soil-related exceptions could not be justified with the wording instrument. Part a) and b) of Art. 9 I DWD unmistakably specify the reasons for possible derogations as geogen or exceptional meteorological conditions.64 Consequently, the wording method of judicial interpretation demands that information on both types of quality deviations must be reported.65 The German advocate had used the wording technique at the beginning of the discourse and could, consequently, not to simply this disregard this method and the argument of his European colleague later on as the narrow interpretational technique matched the narrow scope of the interpretational problem. Thus, in the late oral stage of the judicial discourse, the German advocate did not challenge the wording-based interpretation of his European colleague with arguments based on alternative methods of legal reasoning66 and no longer denied the necessity of comprehensive quality reporting requirements independent of the sources for quality problems.67 Also, the German advocate no longer claimed that general exceptions are possible if they are caused by the texture of the soil, so that they must not be reported to the Commission on a case-by-case basis.68 Both parties shared the narrow wording method that matched the limited interpretational scope of the problem at stake. Thus, the hypothesis expects that an intersubjectively valid norm interpretation emerged among the legal experts to which Germany became argumentatively entrapped and ended non-compliance.





59 Advocate General, ‘Opinion of the Advocate General, 12 February 1992’, p. 18.

60 Advocate General, ‘Opinion of the Advocate General, 12 February 1992’, p. 18. Interview former member of the European Commission, March 2005.

61 Interview former member of the European Commission, March 2005; Advocate General, ‘Opinion of the Advocate General, 12 February 1992’. p. 18.

62 Interview former member of the European Commission, March 2005, Advocate General, ‘Opinion of the Advocate General, 12 February 1992’. p. 19.

63 European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 28, Interview ministry of health, October 2005.

64 Advocate General, ‘Opinion of the Advocate General, 12 February 1992’, p. 20.

65 Interview Bundesverband der deutschen Gas- und Wasserwirtschaft, March 2005, Interview ministry of health, October 2005.

66 The ECJ also followed this line of argumentation and ruled in its judgment on November 1992 that the DWD required complete reports of all granted exceptions (European Court of Justice, ‘Court Judgment’, pp. 29, 31). The ECJ usually issues judgments, if legal changes are not completed during ongoing judicial discourses. Thus, Court judgments do not necessarily indicate that preceding judicial discourses failed.

67 European Court of Justice, ‘Court Judgment of 24 November 1992’, Advocate General, ‘Opinion of the Advocate General, 12 February 1992’.

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

Why discourse only matters sometimes 159 Once it became clear in the late judicial discourse that legal experts do not see any room to justify deviations from the consensual norm interpretation with good arguments,69 the health ministry and members of the government became entrapped. They changed their rhetoric on drinking water policies, initiated legal changes five months ahead of the judgment, and enforced complete implementation of the new demanding drinking water policy afterwards.

Firstly, rather than focusing on costs associated with the European DWD and defending a minimalist drinking water quality approach, the government highlighted the merits of the DWD for preventing environmental and health damages.70 They even stated that environmental concerns were important for the maintenance of Germany’s high water quality standards.71 While drinking water issues were debated in terms of public health fitting to an undemanding reading of the DWD in the Bundestag before the judicial discourse, drinking water quality was also regarded as a matter of environmental protection afterwards, which matched a more demanding water quality policy.72 The distinction between rightful healthrelated quality parameter and ‘unnecessary’ environmental quality parameters was no longer maintained and the conviction that compliance expenditures for the latter should be reduced stopped being in vogue in the health ministry.73 This was in stark contrast to the arguments prominent in 1989, in which the scientific and technological basis of the DWD and in particular of some of its environmental parameters had been attacked from all sides in order to justify a minimalist, cost-saving transposition of the DWD.74 Secondly, the government and the health ministry not only changed the rhetoric, but also adapted legal acts in line with a comprehensive monitoring and information system. The health ministry drafted the Drinking Water Provision (DWP) already during the late stage of the ongoing judicial discourse in July

1992.75 The DWP was passed in December 1992 and entailed communicational 69 Interview former member of the Bundesgesundheitsamt, May 2005, European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 25; Advocate General, ‘Opinion of the Advocate General, 12 February 1992’, pp. 17, 19.

70 The ministry could have relied on the (broader) systematic argument that the federal loyalty principle precludes the legalisation of any explicit information rules (as argued in the early stage of the discourse), in order to defend its initial position. But this argument would not have exactly addressed the issue at stake, would not have been compatible with the professional opinions of the advocates, and would hardly have been accepted by the European enforcement authorities. Hence, after the judicial discourse produced an interpretation that was intersubjectively valid among the advocates of the parties, it would have been irrational (since most likely unsuccessful) and inappropriate of the German government to use a deviating argument any longer.

71 Bundestag, ‘Plenarprotokoll vom 24.11.1992’, pp. 12/5968.

72 Bundestag, ‘Plenarprotokoll vom 24.11.1992’, pp. 12/5968; Bundestag, ‘Plenarprotokoll vom 22.04.1993’, pp. 13027–48. ‘[...] for ecological reasons and reasons of health protection and health care the government puts strong emphasis on the modernization of drinking water facilities [...]’ (own translation) Bundesregierung, ‘Antwort Bundesregierung; BMG (federführend) 18.01.1993.

Wasserversorgung; Trinkwasser; Abwasser’, 12/4143, p. 10.

73 Bundestag, ‘Plenarprotokoll vom 21.09.1994’, pp. 21641–57. Interview ministry of the environment, September 2005.

74 Interview former member of the Bundesgesundheitsamt, May 2005, Bundestag, ‘Plenarprotokoll vom 22.04.1993’, pp. 13027–48.

75 Bundestag, ‘Plenarprotokoll vom 19.08.1988’, p. 2799; Bundesregierung, ‘Antwort der Bundesregierung auf eine kleine Anfrage der Abgeordneten Frau Kiehm und der Fraktion der SPD – Schadstoffbelastung Wasser’, 11/2285 (1988).

160 Diana Panke requirements for all water quality derogations.76 As expected by the judicial discourse hypotheses, the 1992 DWR constituted compliance, since it was based on a demanding and comprehensive interpretation of the DWD.77 Most remarkably, Germany changed its drinking water policies, despite the strong non-compliance constituency of water providers78 and despite compliance costs, in particular for the drinking water systems in the new Länder, were still immense.79 Thirdly, in line with this policy change, the health ministry also strengthened domestic compliance monitoring and enforcement measures. The German Federal Health Authority (BGA) had extensive contacts to water providers in the Länder, opposed the 1990 DWR and the 1992 DWP, and campaigned for ignoring some of the drinking water quality parameters.80 The BGA was concerned that comprehensive quality reporting systems would reveal all instances of poor drinking water quality, in particular in the new Länder. They thought that this would increase pressures on the BGA, local authorities, and water suppliers or even lead to additional EU infringement proceedings for failures of practical implementation of the DWD.81 Neither the government nor the health ministry used the scepticism of the BGA as a window of opportunity to pursue a less demanding drinking water quality approach in the implementation stage. Instead, they reacted promptly with threats of dismissals, in order to bring the BGA in line with compliance and eradicate domestic norm violations.82 All these indicators point towards the effectiveness of the judicial discourse. After a decade of violating the DWD, Germany finally abandoned its non-compliance rhetoric, adapted legal acts and achieved compliance very quickly after the ECJ judgment.83 76 Gesundheitsministerium, ‘Allgemeine Verwaltungsvorschrift zu Trinkwasser, 09.07.1992’.

77 In addition, the government invested 11,000,000 DM in laboratories of water providers and other institutes, in order to enable them to comprehensively check the quality of drinking water (Bundestag, ‘Plenarprotokoll vom 5.02.1992’, p. 55; Bundestag, ‘Beschlussempfehlung und Bericht des Ausschusses für Gesundheit’ 07.12.1992’, p. 4).



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