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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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78 The comprehensive and quick legal adaptation is remarkable. The DWP draft required the approval of the Bundesrat, because implementation issues as competencies of the Länder were at stake.

However, especially CDU governed Länder opposed comprehensive reporting requirements (Bayern, ‘Antrag 24.09.1992’; Bundesrat, ‘Plenarprotokoll 25.09.1992’). Even the Bundesrat’s Committee for Health proposed scope restrictions to the informational requirements in the governmental draft DWP (Bundesratsausschuss für Gesundheit, ‘Empfehlungen zur Allgemeinen Verwaltungsvorschrift über Trinkwasser, 14.09.1992’, p. 2, Bundesrat, ‘Plenarprotokoll 25.09.1992’, p. 487). The Kohlgovernment managed to pass the DWP against this scepticism and prescribed communicational requirements for deviations from all parameters for geogen and for meteorological reasons. The DWP ensured the comprehensive collection of information on exceptions and derogations from local authorities to the federal ministry for health. It did not encompass windows of opportunities for future less demanding norm interpretations; did not entail unspecified or ambiguous new concepts and did not create overlaps with other bodies of law, but resembled a demanding form of compliance. (Bundesgesundheitsministerium, ‘Allgemeine Verwaltungsvorschrift zu Trinkwasser, 09.07.1992’, pp. 1, 6).

79 Bundesregierung, ‘Antwort Bundesregierung; 18.01.1993’, 12/4143; Bundestag, ‘Plenarprotokoll vom 22.04.1993’, pp. 13027–48.

80 Estimations went up to 100,000,000,000 DM for the instauration of the water supply and the sewerage disposal in the new Länder (Bundestag, ‘Plenarprotokoll vom 16.01.1992’, p. 5971).

81 Interview ministry of the environment, September 2005; Bundestag, ‘Plenarprotokoll vom 05.12.1991’, pp. 5455–68; Bundestag, ‘Plenarprotokoll vom 14.01.1993’.

82 Interview former member of the Bundesgesundheitsamt, May 2005.

83 Interview former member of the Bundesgesundheitsamt, May 2005.

Why discourse only matters sometimes 161 V. Review of alternative explanations This section analyses in how far alternative constructivist and rationalist approaches can account for the observed policy change.

IV.1 Constructivist approaches In the German drinking water case, the government introduced policy changes accompanied by changes in its rhetoric towards the end of the judicial discourse.

This policy change was stable over time and the government did not shift back into a less demanding drinking water approach after the Commission had closed the case. Hence, is very likely that the government had become persuaded to abandon its former non-compliance interests. But was this ideational change induced through other channels than the effective arguing in the judicial discourse? Did societal compliance proponents push the government into compliance from below?

Did high norm density or moral authority foster effective arguing?

Societal compliance proponents might have triggered persuasion processes bottom-up, if interest groups were present and had sufficient resources to engage in compliance strategies.84 In the German drinking water case, water providers and the BGA were strong domestic compliance opponents and preferred a less demanding water quality approach.85 Environmental groups, such as the Deutsche Naturschutzring, Greenpeace or the BUND Naturschutz, were aware of drinking water quality problems and formed the compliance constituency.86 Although they were well staffed, possessed resources and had networks, they only halfheartedly supported a demanding water approach. This was not the least to the suspicion of some environmental groups and even the Green Party that high drinking water quality standards would prevent citizens from using water that falls short of these standards for non-consumption purposes in order to save scarce resources.87 Thus, the compliance constituency was rather inactive prior to the 1992 policy change.

They did not publicly criticise the government or argue in favor of a demanding DWD interpretation and did not push the government into compliance from below, but later on collaborated with the government on the implementation of the refined drinking water policy.88 The explanatory power of the norm density hypothesis is also limited. The norm density between the parties in the ongoing judicial discourse was relatively high, since Germany as a pro-European founding state has had time to become socialised into EU norms. Also, the validity of the DWD was not at stake in 84 Even after the European Commission had closed the case, the government did not shift back towards a less demanding and less costly form of compliance, but maintained its new policies (Bundestag, ‘Plenarprotokoll vom 04.03.1993’, pp. 12355C-21360D., Bundestag, ‘Plenarprotokoll vom 20.01.1994’, pp. 17766–96.).

85 X. Dai, ‘Why Comply? The Domestic Constituency Mechanism’, International Organization, 59 (2005), pp. 363–98; A. Börzel, Environmental Leaders and Laggards in the European Union. Why There is (Not) a Southern Problem (London: Ashgate, 2003).

86 Bundesregierung, ‘Antwort Bundesregierung; BMG (federführend) 18.01.1993.’ Wasserversorgung;

Trinkwasser; Abwasser’, 12/4143; Bundestag, ‘Plenarprotokoll vom 14.01.1993’, pp. 12, 131.

87 Interview Greenpeace, June 2005.

88 Green Party, ‘Motion for a Resolution on Drinking Water’, 27 September 1989, p. 2.





162 Diana Panke Court, but only questions of detail.89 Yet, this thick common lifeworld did not help to foster persuasion and ideational change, since both parties talked cross-purposes in the early stage of the judicial discourse and effective arguing took not place. The European advocate referred to the common European lifeworld in referring to the purpose of the DWD.90 The German advocate, by contrast, focused on its domestic lifeworld and referred to a national legal institution, the of ‘states’ loyalty towards the federation’ principle.91 Unlike the early stage, the late judicial discourse quickly facilitated compliance. Yet, the European norm density did not increase but was constant across the ECJ case. Hence, the norm density hypothesis cannot explain the variation in the compliance dynamics.

According to approaches drawing on social psychology, arguing should be effective if a speaker enjoys moral authority.92 However, European and German advocates represented particular interests, which limited their moral authority. In contrast to the parties, ECJ judges should not be biased towards a particular political position, but should base their independent judgment solely on legal reasoning.93 In this sense, it more likely that governments attribute moral authority to the ECJ judges than to the advocate of the other party. This might foster compliance with judgments, in particular if states are pro-European and regard compliance with ECJ rulings as demanded by a logic of appropriateness. However, in the German drinking water case, the moral authority of ECJ judges cannot explain compliance dynamics, because the legal adaptation was successfully completed prior to the judgment concerning the first issue at stake and already on its way concerning the second one.

V.2 Rationalist explanations

The rationalist literature offers a broad array of explanations why states opt for and abandon non-compliance. Enforcement, compliance bargaining, and principalagent approaches basically content that states as strategic rational actors opt for non-compliance in order to save implementation costs. Consequently, norm violations can be remedied if external or domestic compliance costs or benefits change and render compliance cheaper or non-compliance more expensive.

Enforcement approaches expect that states invest resources into compliance, if external norm violation costs exceed domestic benefits or if domestic compliance 89 Interview ministry of the environment, September 2005; T. Börzel, Environmental Leaders and Laggards in the European Union’.

90 European Court of Justice, ‘Court Judgment of 24 November 1992’; Advocate General, ‘Opinion of the Advocate General’.

91 According to the directive-immanent teleological line of reasoning, communicational requirements had to be legally prescribed. Otherwise, the Commission could not fulfill its monitoring function;

European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 28; Advocate General, ‘Opinion of the Advocate General’, pp. 17ff.

92 Hence, Germany argued that its drinking water legislation sufficiently ensured reports on derogations to the central state, rendering an explicit legal act irrelevant; European Court of Justice, ‘Court Judgment of 24 November 1992’, p. 25.

93 J. T. Checkel, ‘Why Comply?’, p. 563.

Why discourse only matters sometimes 163 expenditures decline considerably.94 In the drinking water case, benefits from violating EU law were high during and after the judicial discourse. Due to the immense anticipated implementation expenses, water suppliers and the Länder opposed all the parameters beyond the already present German approach and preferred a flexible transposition with broad exceptions.95 In addition, the agricultural lobby feared a shift towards a polluters-pay-approach, according to which they would pay for causing low drinking water quality through nitrates emissions.96 Compliance costs remained constantly high for the government as well. They had to invest billions of DM in the years after 1991, in order to raise the drinking water quality in the new Länder and to enable laboratory facilities to sufficiently control its quality.97 Nevertheless, the Kohl-government quickly complied with a demanding reading of the DWD. Accordingly, the health ministry designed and passed a new DWR in 1992 that did not entail unspecified or ambiguous new concepts, created no overlaps with other bodies of law, did not allow for many exceptions and required rigorous reports of the water quality. The 1992 DWR did not entail windows of opportunity for lax norm applications in the future implementation stage although this would have reduced future expenditures.

Moreover, the government strictly enforced compliance with the 1992 DWR against the BGA, although a less thorough application of the quality standards and the reporting requirements would have opened a backdoor for saving compliance expenditures.98 Thus, decreasing domestic compliance costs cannot explain the observed policy change.

Did external non-compliance costs increase after the ECJ judgment in November 1992 and, thus, foster compliance? Since 1993, the ECJ can issue second judgments and financial sanctions (Art. 228 ECT), if a state continues noncompliance for more than a year after the first judgment. In the drinking water case, the sanction-threat was remote during the judicial discourse and also directly after the ECJ judgment. Germany did not shy away from looming financial penalties. Instead of saving compliance costs as long as possible, the health ministry started and almost completed legal changes more than two years before sanctions would have eventually become imposed. Also, the health ministry opted for a demanding form of compliance with no in-built opportunities for flexible implementation and did not tolerate lax practical applications, as proposed by the BGA although this would have saved compliance costs while possibly avoiding sanction measures by the ECJ.99 Moreover, the government did not instrumentally adapt to rising costs. Instead of applying a cost-benefit rhetoric, they recurred to a language of righteousness and appropriateness and emphasised the importance of high water quality for both, public health and the environment, which fitted well 94 R. O. Keohane, A. Moravcsik and A. M. Slaughter, ‘Legalized Dispute Resolution: Interstate and Transnational’, International Organization, 54 (2000), pp. 457–88.

95 G. W. Downs, ‘Enforcement and the Evolution of Cooperation’, Michigan Journal of International Law, 19 (1998), pp. 319–44.

96 Sueddeutsche Zeitung, ‘Gas- und Wasserwirtschaft wirft Bundesregierung Untaetigkeit vor’, 30 November 1992.

97 Bundesregierung, ‘Unterrichtung der Bundesregierung 06.09.1994. Politik für eine nachhaltige, umweltgerechte Entwicklung’, pp. 849–91; interview ministry of the environment, September 2005.

98 Bundestag, ‘Plenarprotokoll vom 16.01.1992’ pp. 5967–71; Bundestag, ‘Plenarprotokoll vom 5.02.1992’, p 55.

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

164 Diana Panke to their new demanding drinking water quality approach.100 In line with that, the government did not publicly emphasise that the ECJ has ultimately been responsible for changes in the German drinking water policy and that Germany had no choice other than obeying, although such blame-shifting would have avoided potential losses in domestic reputation vis-à-vis the strong domestic non-compliance constituency. In sum, there is no evidence that Germany yielded from the threat of future enforcement measures of the ECJ and therefore changed its drinking water policies in 1992.

Another alternative rationalist explanation is compliance bargaining.101 In Court, bargaining acts are inappropriate and empirically not used.102 However, Germany might have approached the European Commission outside the Court, successfully negotiated a compromise in the shadow of the ECJ, and quickly changed its legal acts accordingly.103 Since ECJ cases are politically sensitive, it is not possible to get information on whether such interactions took place. Therefore, this section applies counterfactual reasoning. If compliance bargaining would have taken place in the drinking water case, Germany did either not successfully manage to construct a compromise according to its minimalist compliance preferences, since none of its initial positions shaped the outcome: The 1990 DWR and the 1992 DWP closely resembled the positions of the European Commission. Alternatively, bargaining failed completely, since the Commission did not close the case prior to the ECJ judgment. Hence, informal compliance bargaining cannot explain why Germany fully adapted legal acts in line with the demanding ECJ ruling within one month.



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