Environmental Leaders and Laggards in Europe

Why There is (Not) a 'Southern Problem'

Tanja A. Börzel

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351939614
• Edition: 1
• Topic: Sciences sociales
• Subtopic: Géographie humaine

No other European laws are so frequently violated as environmental directives. This informative and illuminating volume explains why member states have repeatedly failed to comply with European Environmental Law. It challenges the assumption that non-compliance is merely a southern problem. By critically comparing and analyzing Spain and Germany, the volume demonstrates that both northern leaders and southern laggards face compliance problems if a European policy is not compatible with domestic regulatory structures. The North-South divide is therefore much more complex than previously thought. Examining each country's capabilities of shaping European policies according to its environmental concerns and economic interests, the book debates the possible outcomes if the European Union does not come to terms with the leader-laggards dynamics in environmental policy-making. It will be a prime resource for anyone concerned with environmental policy-making and law, particularly within the EU, as well as those interested in environmental and political geography.

Chapter One
Introduction

No other European laws are so frequently violated as environmental Directives. Over 20 per cent of the infringements registered with the European Commission fall into the area of environment. While compliance is rather poor in general, the four southern member states have the reputation of being particular laggards. Italy, Greece, Portugal, and Spain account for about 42 per cent of the infringement proceedings initiated since 1986. The literature therefore tends to treat ineffective implementation and non-compliance with European environmental policy as a peculiar ‘Southern problem’ (Pridham and Cini 1994; Pridham 1996). The poor compliance record of the Southern European countries is attributed to certain defects of their political and social institutions. Insufficient administrative capacity, a civic culture inclined to individualism, clientelism, and corruption, and a fragmented, reactive and party-dominated policy process are believed to undermine their willingness and ability to comply with EU environmental law.

This book challenges the view that the Southern European member states suffer from a common disease some have referred to as the ‘Mediterranean Syndrome’ (La Spina and Sciortino 1993), which makes them the main culprits of non-compliance with EU environmental law. Such a view reproduces specific Northern European images of Southern European politics and ignores general causes of implementation failure and non-compliance. It overlooks significant variations both among the Southern European member states themselves as well as between them and their Northern European counterparts. Not only do Italy, Spain, Greece, and Portugal substantially differ in their political and social institutions as well as in their compliance performance. Northern European countries may face serious compliance problems, too. It took Germany almost ten years and a conviction by the European Court of Justice to correctly transpose the Drinking Water Directive into national law. Spain, on the contrary, had legally implemented the Directive four years before it joined the European Community. Germany has been a front-runner in air pollution control, while Spain is still lagging behind. But Germany has faced as many infringement proceedings as Spain for resisting the implementation of ‘new’ policy instruments, such as the Environmental Impact Assessment Directive and the Access to Information Directive.

How can we explain variations in member-state compliance with EU environmental law, which cut across the alleged North-South divide? Why do member states successfully implement some policies while leaving others insufficiently transposed, applied and enforced? Are some policies more conducive to effective implementation and compliance than others? Do certain institutional factors facilitate or prohibit the successful integration of European policies into national regulatory structures?

The book attempts to establish two major claims in addressing these questions. First, effective implementation and compliance with EU environmental policies vary across both member states and policies. Therefore, neither the domestic institutions of the member states nor specific features of EU environmental policy-making can account for compliance problems only. Non-compliance results from an interplay between European and domestic factors. If an EU policy does not fit the regulatory structures in a member state, its legal transposition, practical application, and enforcement impose considerable costs of adaptation, which domestic actors are hardly inclined to bear. Laws and administrative procedures have to be changed, and with them, policy-makers and administrators have often to adapt their beliefs in what is the best way of protecting the environment. The integrated approach of the Environmental Impact Assessment Directive, for instance, not only requires comprehensive legal and administrative changes in member states with traditionally fragmented regulatory structures, like Germany. It also challenges the media-specific approach to environmental regulation, which corresponds to a general belief in the technical superiority of bureaucratic organization through specialization. Moreover, resources have to be (re)allocated in order to provide the additional personnel, expertise, and technology for the effective application, monitoring, and enforcement of the new policy. The monitoring of the 64 parameters prescribed by the European Drinking Water Directive required new measurement technologies even for countries like Germany, whose monitoring system was already up to the highest standards. Regulated parties, finally, are likely to oppose ‘misfitting’ policies, when they impose new regulatory burdens on them. German industry has mobilized against the Access to Information Directive, since it feared that a greater involvement of the public would slow-down the authorization of classified activities. In view of such costs, European policies that do not fit policies at the domestic level are most likely to result in implementation failure and non-compliance. If, by contrast, a European policy is compatible with the dominant problem-solving approach, the policy instruments and policy standards of a member state, there is no reason why implementation and compliance should give rise to substantial problems.

Second, policy misfit is only the necessary cause of implementation failure and non-compliance. While policy-makers, administrators and regulated parties are likely to resist the costs of complying with ‘misfitting’ policies, additional pressure from ‘below’ and from ‘above’ (Brysk 1993) can induce policy-makers and public authorities to effectively implement and enforce costly European policies. Pressure from below is generated by the mobilization of domestic actors seeking to pull down European policies to the domestic level. Citizens, environmental organizations, and political parties can mobilize public opinion by raising concerns about the non-compliance with a European policy. Media campaigns and public shaming are particularly effective in countries like Germany, which aspire to be environmental leaders in Europe. For the red-green coalition government of Chancellor Schröder, it was increasingly difficult to justify why - after ten years - Germany still did not comply with ‘progressive’ environmental policies such as the Access to Information Directive or the Environmental Impact Assessment Directive. Moreover, societal actors can act as ‘watchdogs’ collecting and distributing evidence on instances of non-compliance. Spanish and German environmental organizations have systematically tested the information rights granted by the Access to Information Directive and published the results in several studies. The supremacy and direct effect of European Law also allows individuals to bring legal action against compliance failures. Citizens and public interest groups have successfully litigated against the authorization of projects in German and Spanish courts that had proceeded without the necessary environmental impact assessment. But not only societal actors have an incentive to pull European policies down to the domestic level. Economic actors may also mobilize in favour of compliance with ‘misfitting’ policies, if they anticipate competitive disadvantages. German business associations put significant pressure on the German government to speedily implement the European Eco-Audit Regulation because they feared that their competitors could gain a first-mover advantage. If domestic mobilization generates sufficient pressure from ‘below’, it can change the cost-benefit calculations of policy-makers and public authorities making non-compliance more costly.

Domestic mobilization is particularly effective if it succeeds in generating pressure from ‘above’. The European Commission has the power to open infringement proceedings against member states which it suspects of violating European Law. Infringement proceedings provide the Commission with an effective means to ‘push’ member states into compliance. Not only can they lead to a conviction by the European Court of Justice, which may impose substantial financial penalties. Infringement proceedings also incur significant political costs on member states, particularly if they wish to portray themselves as environmental leaders or good Europeans. The German public was rather irritated when the European Commission threatened Germany with a daily fine of over EUR 200,000 for its persistent non-compliance with the Environmental Impact Assessment Directive. Domestic actors fulfil important monitoring functions for the Commission since it has very limited resources. Most infringement proceedings originate with complaints lodged by citizens, public interest groups, and companies. The European infringement proceedings also offer domestic actors an authoritative venue to challenge non-compliant state behaviour. While Spanish and German courts have tended to support the restrictive application of the Access to Information Directive by public authorities, the European Court of Justice has backed appeals by German and Spanish citizens and public interest groups. If member states become ‘sandwiched’ between pressure from below, where domestic actors pull the EU policy down to the domestic level, and from above, where the Commission and the European Court of Justice push towards compliance, European policies are more likely to be effectively implemented and complied with, despite the high costs involved.

This ‘Pull-and-Push’ Model of compliance generates the following hypothesis about when ‘misfitting’ policies are likely to be effectively implemented and complied with despite the adaptational costs they incur:

Compliance with policies that incur significant adaptational costs (policy misfit), is the more likely, the higher the adaptational pressure from below and from above (domestic mobilization, infringement proceedings).

Linking policy and country variables in explaining implementation failure and non-compliance allows to reformulate the ‘Southern Problem’ in more general terms. Non-compliance with European Environmental Law is clearly more pronounced in the South than in the North. But the reason for this is not some cultural and institutional deficiencies. Rather, EU environmental policy-making produces greater policy misfit for Southern European member states while their closed political opportunity structures and lower level of socio-economic development discourage domestic mobilization that is able to generate pressure from below and from above. EU environmental policy-making is a regulatory contest between high-regulating member states (Héritier, Knill, and Mingers 1996). The industrial and environmental first-comers of the North have developed strict environmental regulations, which they wish to harmonize at the European level to avoid competitive disadvantages for their industries and to reduce adaptational costs in the implementation of European policies. They command the policies as well as the necessary resources to upload them to the European level. The industrial and environmental late-comers of the South, by contrast, have neither the policies nor the capacity for up-loading. They wish to maintain their lower level of regulation to catch up with the industrially more advanced countries as much as they seek to avoid the costs for adapting their regulatory structures to more stringent European standards. The dynamics of European decision-making prevent individual member states to systematically impose their regulatory approach on the others. Since the highly-regulating countries differ significantly in their regulatory structures, even environmental first-comers can face significant policy misfit. In general, however, the southern member states are much more likely to have to down-load European environmental policies that do not fit their regulatory structures. As a result, those countries with the most limited compliance capacities have to bear the highest compliance costs. European policies that are shaped by the economic interests and environmental concerns of the highly industrialized North undermine both the capacity and the willingness of southern member states to comply. But not only do the southern countries have to cope with the problem of few resources and high compliance costs. Their policy-makers and administrators are also less likely to face pressure from domestic actors, which may help to counteract attempts of avoiding compliance costs. The closed political opportunity structures combined with a lower level of socio-economic development seriously constrain the capacity of domestic actors in southern societies to pull European policies down to the domestic level. Limited resources, restricted access to the policy process, and a strong political priority for economic development over environmental protection make it difficult for citizens and public interests groups to generate sufficient pressure at the domestic and European level to significantly increase the costs of non-compliance for policy-makers and administrators.

Explaining implementation and compliance as the result of differing degrees of policy misfit and of pressure from below and above has several advantages over alternative explanations. The ‘Pull-and-Push’ Model systematically links country and policy variables in accounting for the different levels of compliance in the member states. It can explain why some countries face fewer difficulties in implementing and complying with European (Environmental) Law than others. At the same time, the model explains why individual member states comply better with some policies than with others. Most importantly, the ‘Pull-and-Push’ Model allows to overcome the reductionism of the ‘Southern Problem’ literature by emphasizing the general causes of implementation failure and non-compliance, which are neither geographically bound nor static. The capacity to shape European policies, on the one hand, and the openness of the political opportunity structures and the level of socio-economic development, on the other, vary between all member states. They may also change over time. While there seems to be no cure for the ‘Mediterranean Syndrome’, strengthening the administrative capacities of the southern member states and the organizational capacities of their domestic actors could help to alleviate problems of implementation failure and non-compliance in the South.

The book is divided into three parts. Chapter two critically reviews the empirical evidence presented in the literature on the existence of a ‘Southern Problem’. It starts with raising some methodological issues on the inferences that we can make from existing data. While the statistics on the infringement proceedings published by the European Commission in its Annual Reports help us to overcome the small-n problem of comparative case studies, the conclusions we can draw from the data on the level of member state compliance with European Law are limited. After having discussed some important problems with the empirical data available, the remainder of the chapter explores whether the European Union is facing a growing compliance problem and to what extent the Southern European member states can be held responsible. The analysis shows that we have no evidence for a widening implementation gap. And while non-compliance is more pronounced in the South than in the North, there is considerable variation between the member states, which cuts across the alleged North-South divide.

Chapter three revisits the various explanations offered by the literature on implementation failure and non-compliance with European Environmental Law. The first part of the chapter shows that neither the ‘Mediterranean Syndrome’ nor more general approaches to the ‘Southern Problem’ are able to account for the variations in member state compliance found in the first chapter. Nor are they able to explain policy variation within individual member states. The second part of the chapter develops an alternative model, which systematically links policy and country variables in explaining implementation and compliance. The ‘Pull-and-Push’ Model allows to reformulate the ‘Southern Problem’ in more general terms by identifying differing degrees of policy misfit and of pressure from below and from above as the major factors driving effective implementation and compliance.

Chapter four systematically tests the propositions of the ‘Pull-and-Push’ Model in a comparative study on the implementation of six different European environmental policies in Germany and Spain. It starts with some methodological issues on case selection and on measuring effective implementation and compliance. The 12 case studies differ with regard to the degree of policy misfit and the level domestic mobilization in the two countries. Germany represents an industrial and environmental first-comer with a high capacity to shape and implement European policies. The opposite is true for Spain, which belongs to the group of industrial and environmental late-comers. The two countries also differ with respect to the openness of their political opportunity structures and the mobilization capacities of their citizens and public interest groups. The main part of the chapter traces the processes through which the six policies have been legally implemented, practically applied, monitored, and enforced in Spain and Germany. The comparative study not only shows that environmental leaders may face substantial difficulties in complying with European environmental policies, too. It is the same factors that account for the compliance performance of the two member states.

The conclusions summarize the major findings of the book. Then, the scope conditions of the ‘Pull-and-Push’ Model are discussed. While its categories are sufficiently broad to be applied to other policy areas, it does not constitute a proper compliance theory. The model only identifies one albeit important causal mechanism of compliance, which can be applied across policy areas and various forms of law beyond the nation state. Finally, some of the implications of the ‘Pull-and-Push’ Model for European environmental policy-making are considered. Are we likely to see the rise of interest coalitions, which systematically pitch member states of diverse levels of socio-economic development against each other? Will eastern enlargement turn existent tensions between southern late-comers and northern first-comers into a true ‘North-South conflict’? How can we improve compliance with European Environmental Law in an increasingly diverse European Union with more than 20 member states?

Chapter Two
Is there a ‘Southern Problem’?

Member state compliance with European environmental policies is found to be wanting. Portugal, Italy, Greece, and Spain have the reputation of being particular laggards. But assessing member state compliance with European (Environmental) Law is not an easy task. This chapter reviews the evidence presented in the literature on the increasing implementation failure in European policy-making, for which the southern member states are often held responsible. It starts with raising some critical questions about the reliability of existing data. Drawing on some new sources, it then explores whether the implementation gap has been widening in the European Union and to what extent this can be attributed to a poor performance of its southern member states. The study finds only weak support for the overall perception of a ‘Southern Problem’. Looking at different indicators, the picture is much more blurred and shows considerable variation both among the southern member states as well and the alleged ‘North-South’ divide.

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