The directive on the quality of water on human consumption (drinking water directive) (80/778/EEC)

The Directive on the Quality of Water on Human Consumption (Drinking Water Directive), adopted by the Council on 15 July 1980, is one out of three Directives that regulate water for human consumption. The Drinking Water Directive applies to all water that is required for direct human consumption (drinking water) and for food production. It imposes legally binding, substantive standards to reach a certain level of drinking water quality. The member states must fix values for each of the parameters indicated in the Directive, within the scope set by the guiding and mandatory values. The Directive also prescribes how often and by what means authorities have to monitor the water quality and it specifies a method of analysis for each parameter.

The directive on the combating of air pollution from industrial plant (84/360/EEC) and the directive on the limitation of emissions of certain pollutants into the air from large combustion plants (88/609/EEC)

There are two Directives which are of particular importance for the EU policy on the combating of air pollution: the Directive on the Limitation of Emissions of Certain Pollutants into the Air from Large Combustion Plants and its “mother directive”, the Directive on the Combating of Air Pollution from Industrial Plants.

The Industrial Plant Directive, which the Council adopted on 28 June 1984, provides framework legislation for preventing and reducing air pollution caused by industrial plants.

Part I provides the theoretical framework of the book and presents the propositions to be evaluated in the comparative study. I briefly discuss the two major approaches to the study of the domestic impact of Europe dominating the literature: “resource dependency” and “institutional adaptation”. The two approaches entail different understandings of how institutions affect actors' behavior. Resource dependency usually draws on some form of rational choice institutionalism, which conceives of institutions as constraining and enabling specific choices and strategies of rational actors striving to maximize their self-interests. Institutional adaptation is firmly rooted in sociological institutionalism, which emphasizes the social or cultural aspect of institutions. Institutions do not only constrain and enable actors' behavior. Institutions entail collectively shared systems of meanings (institutional culture), which constitute actors by providing them with fundamental understandings of what their interests and identities are.

Due to their distinct understanding of institutions, resource dependency and institutional adaptation identify different causal mechanisms by which Europeanization affects the institutions of the member states. They generate different empirical validity claims on the conditions of change, the process of change, and the degree and outcome of change. But rather than testing these empirical validity claims against each other, I strive to combine theoretical assumptions of resource dependency and institutional adaptation in a historical institutionalist approach to Europeanization and domestic institutional change. I argue that both the instrumental and the cultural dimension of institutions have to be taken into account in order to understand Europeanization and its domestic impact.

In 1992 a change in the German Constitution provided the German regions (Länder) with comprehensive co-decision rights in European policy-making. That change made it possible for the Länder not only to determine the German bargaining position if their legislative or administrative competencies were affected, but the Länder were also permitted to sit at the negotiation table in the Council of Ministers for the very first time. If a European issue falls within the area of their exclusive competencies, it is a Länder Minister, and not a member of the German government, who represents the Federal Republic of Germany in the European decision-making process.

Two years later, in 1994, the Spanish government and the 17 Spanish regions (Comunidades Autónomas) agreed on a formal procedure through which the Comunidades Autónomas were to participate in the decision-making and implementation of European policies. The procedure was further developed and became law in 1997. Unlike the German Länder, the Comunidades Autónomas do not have access to the Council of Ministers. But they can determine the Spanish bargaining position if their exclusive competencies are affected. For the very first time the Comunidades Autónomas have the right to participate directly in central-state decision-making.

The participation of the German and Spanish regions in European policy-making is a clear example of how Europeanization may affect the institutions of the member states. In both cases, we observe a formal institutional change, which aims to counterbalance the progressive transfer of regional competencies to the European level.

The uneven distribution of “say and pay” in European environmental policy-making

The loss of environmental co-decision powers

In Germany the responsibility for environmental policy is strongly decentralized and reflects the functional distribution of labor, which is typical for German cooperative federalism. While legislation has become increasingly centralized at the federal level, the Länder are mainly responsible for implementation. The German Constitution initially assigned the Länder the exclusive responsibility for environmental policy. But most of the Länder competencies became federalized in the 1970s (cf. Müller 1986). The Länder were compensated for the transfer of their competencies to the federal level through the participation of the Bundesrat in federal environmental policy-making. Apart from its co-decision powers in the formulation and decision-making of practically all federal environmental laws, the Bundesrat also has the right to instigate legal initiatives. Thus, the Europeanization of environmental competencies did not cause the Länder to lose any exclusive competencies. But the concentration of decision-making powers in the hands of the member-state governments has reduced the co-decision rights of the Bundesrat from legal initiatives and a veto in the decision-making to, at best, a veto that suspends the implementation of the respective environmental policy. By devaluing the co-decision powers of the Länder, Europeanization has seriously undermined the territorial balance of power in environmental policy-making.

Unlike in domestic policy-making, the Länder have no formal influence on setting the agenda, formulating, and making decisions on European environmental policies.

Part IV of this book presents a policy study on the effects of Europeanization on environmental policy-making in Germany and Spain. The previous two empirical parts (Parts II and III) were set up to systematically test my hypotheses on Europeanization and domestic change by comparing the institutions of two member states. This final empirical part shows how my general line of argument applies to a particular policy area. The policy study allows us to explore on a more concrete level to what extent Europeanization causes an uneven distribution of “say and pay” in European policy-making, thereby producing significant costs of adaptation for the regions of decentralized member states. It demonstrates how the different strategies, which the German and the Spanish regions have chosen in order to reduce costs, have given rise to flexible adjustment and reinforcement in Germany and institutional transformation in Spain.

Environmental policy-making was chosen for this policy study because it is a highly Europeanized policy area. There is a rich and growing body of European environmental legislation which penetrates all sectors of national regulation (cf. Johnson and Corcelle 1995). Environmental policies are increasingly formulated and determined at the European level. But subordinate levels are the main implementers of these policies. In highly decentralized states, the regions not only have administrative but often also legislative implementation competencies.

The policy study on the Europeanization of environmental policy-making in Germany and Spain confirms the major findings of the institutional analysis presented in Parts II and III of this book. In both countries, Europeanization caused an uneven distribution of “say and pay” in favor of the central state. The Länder lost their formal co-decision powers in policy initiative and decision-making, while the CCAA faced the centralization of their legislative and administrative competencies on the implementation level. With respect to the “pay” side, the Länder have to bear significant implementation costs by incorporating European policies, which do not fit German regulatory structures. The CCAA, in turn, carry the major burden of building up regulatory structures and capacities that are required for the effective implementation of European environmental policies in the first place.

The uneven distribution of “say and pay” in EU environmental policy-making has changed the territorial balance of power to the detriment of the Länder and the CCAA. The regions of the two countries have, however, resorted to very different strategies in responding to this pressure for adaptation. The Länder have tried to share the costs of adaptation with the central state. Co-decision powers in the formulation and representation of the German bargaining position compensated the Länder for their loss of competencies. The joint shifting and sharing of implementation costs by upgrading German regulations to the European level, on the one hand, and absorbing and watering down of mismatching European policies, on the other hand, have so far helped to reduce implementation costs.

The uneven distribution of “say and pay” in European environmental policy-making

The centralization of environmental competencies at the national level

As in Germany, the central state and the CCAA share responsibility for environmental policy-making. Sharing competencies, however, does not result in joint decision-making. Rather, the central state sets legislación básica (framework legislation) in order to provide a “lowest common denominator” of environmental standards throughout the country. The CCAA have the responsibility of implementing framework legislation. They may also enact additional norms, which complete or reinforce the regulations of national framework legislation, e.g. by setting stricter standards (Art. 149.23; 148.9 CE). The problem is that the CCAA do not always equally invoke their competence to develop central-state legislation. Some CCAA enact additional regulations, which go beyond the central-state legislation, while others simply apply the national laws. This tends to result in an uneven implementation at the regional level, which is reinforced by the lack of intergovernmental cooperation. Unlike Germany, where the Länder participate in central-state decision-making, intergovernmental coordination and cooperation used to be weak to non-existing in Spain. Consequently, the CCAA had no co-decision powers to lose as a result of Europeanization. Rather, centralization proceeded through the central state “capturing” legal and administrative competencies of the CCAA in the implementation of European environmental policies. The Spanish government managed to intervene in the transposition of virtually all European environmental policies by drawing on its exclusive competence to set and develop framework legislation.

Europeanization can be conceived of as a two-fold process. It involves the evolution at the European level of a distinct governance system, a new set of political structures and processes, which interact with the established ones of the member states. Hence, Europeanization entails a “bottom-up” and a “top-down” dimension. The former emphasizes the emergence of European institutions as a set of new practices and rules, structures of meaning, and resources, while the latter refers to the effect of these new institutions on the institutions of the member states. The causal processes of Europeanization entail both dimensions. However, most studies distinguish between them analytically, focusing on either of the two dimensions.

For a long time, research on Europeanization focused on the “bottom-up” dimension, which has also been referred to as “Europeification” (Andersen and Eliassen 1993) or “Vergemeinschaftung” (communitarization). Europeanization is analyzed as a process of institution-building at the European level driven by the progressive transfer of competencies from the member states to the European Union (formerly European Community). Theoretical and empirical studies focus on the role and interaction of different actors, both European (European Commission, European Parliament, European Court of Justice, Committee of the Regions, EU interest groups) and national (member state governments, interest groups, regions) in European policy-making. The underlying dynamics, the nature, and the final outcome of the emerging European system of governance have been the main dependent variable.

Part III of this book explores the effect of Europeanization on Spanish territorial institutions. Chapter 7 outlines the major formal and informal institutions. I argue that the institutional culture of competitive regionalism has shaped the way in which the Comunidades Autónomas (CCAA) respond to challenges to their political and institutional autonomy. In order to protect their sphere of autonomy against harmonization and centralization, the Comunidades Autónomas have developed a two-fold strategy of constitutional conflict and non-cooperation vis-à-vis the central state.

Chapter 8 starts by showing that Europeanization has posed a similar challenge to Spanish territorial institutions to the one posed in Germany. As in case of the Länder, Europeanization has challenged the institutional autonomy of the Comunidades Autónomas by causing an uneven distribution of “say and pay” in favor of the central state (1). I demonstrate how the institutional culture of competitive regionalism has encouraged the CCAA to pursue a strategy of confrontation against and circumventing of the state (2). I argue that this non-cooperative strategy has hindered a redressing of the territorial balance of power. Facing increasing costs of Europeanization, the CCAA started to reconsider their initial strategy and to adopt a more cooperative approach (3). This strategy change by the CCAA brought about the first institutional framework of multilateral cooperation in Spanish intergovernmental relations that provides for regional participation in central-state policy-making. The introduction of joint decision-making in Spanish competitive regionalism constitutes a major change in the territorial institutions of Spain (4).

This chapter describes the major formal and informal institutions of the Spanish State of Autonomies. I show that the institutional culture of competitive regionalism has shaped the way in which the Comunidades Autónomas responded to challenges to their institutional autonomy by choosing a strategy of constitutional conflict and non-cooperation.

Political autonomy, fiscal centralization, and weak intergovernmental cooperation as the major formal institutions of the Spanish State of Autonomies

In an attempt to reconcile the tradition of a unitary-centralist state with the historical, cultural, and socio-economic aspirations for autonomy voiced by regionalists and national minorities, the Fathers of the Spanish Constitution of 1978 designed a system of intergovernmental relations that emphasizes the institutional autonomy of the central state and the subnational level of government. Unlike German federalism, which is based on a fusion of federal and regional powers in public policy-making (joint decision-making), the Spanish State of Autonomies is oriented toward the American model of dual federalism, which emphasizes the separation of central-state and regional powers. The sectoral distribution of competencies, asymmetrical bicameralism as well as the scarce constitutional provision for intergovernmental cooperation and vertical integration reflect an attempt to grant both levels of government a certain level of political and institutional autonomy in order to secure the cultural pluralism of Spain. Fiscal centralization and mechanisms of voluntary intergovernmental cooperation, such as sectoral conferences (conferencias sectoriales), should provide a minimum of intergovernmental integration and policy harmonization.

In order to conceptualize, describe, and explain the effect of Europeanization on the domestic institutions of the member states, most studies draw on two major strands of theory. They either embrace some sort of resource-dependency approach, which conceives of the European system of governance as a new political opportunity structure that changes the distribution of power resources among domestic actors. Or they resort to organizational theories of institutional change, which understand the domestic impact of Europe as a process of institutional adaptation in which domestic actors adopt and internalize new rules and practices. I argue that the two approaches are embedded in different forms of institutionalism and therefore vary in their expectations of whether, when, and how Europeanization effects the institutions of the member states.

The following two sections discuss resource dependency and institutional adaptation with respect to their capacity for explaining the domestic impact of Europe. Rather than embarking on an ideal-type metatheoretical discussion of different institutionalisms, I contrast the two approaches according to:

• the major propositions which resource dependency and institutional adaptation pose on how actors behave, how institutions affect actors' behavior, and why institutions change;

• the expectations which the two approaches generate about the conditions, the process, the degree, and the outcome of domestic institutional change caused by Europeanization.

The domestic impact of Europe as a resource-dependent process

Resource-dependency approaches are usually based on some sort of rational choice institutionalism as defined by James March and Johan Olsen (March and Olsen 1995: Chapter 2) and Peter Hall and Rosemary Taylor (Hall and Taylor 1996).

This chapter outlines the major formal and informal institutions of German federalism. In particular, it shows how the institutional culture of multilateral bargaining and consensus-seeking have induced the Länder to confront the centralization of their autonomous competencies by a cooperative strategy of cost-sharing. Rather than invoking constitutional conflict, they demanded a compensation for their power losses in the form of participatory rights in federal decision-making. This has allowed for a flexible redressing of the territorial balance of power.

Functional division of labor, strong bicameralism, and fiscal equalization as the major formal institutions of German federalism

The Federal Republic of Germany comes close to a prototype of cooperative federalism. Unlike dual or competitive federalism as seen in the United States, the German Federal State was never meant to accommodate territorial plurality. In the post-war German Constitution, the federal structure fulfills two major purposes. First, it provides a vertical dimension of separation of power. A powerful regional level of government was designed to prevent the re-emergence of a strong central state (Hesse 1962). Second, the federal structure was designed to ensure a certain uniformity of living conditions for all Germans, as demanded by the Sozialstaatsprinzip (welfare state principle) enshrined in Art. 20 I of the Grundgesetz (GG; Basic Law) (Böckenförde 1980). The three major formal institutions of the German federal system are designed to balance the normative prescriptions for decentralization (separation of powers) and centralization (uniform living conditions).

This chapter shows how the Spanish territorial institutions faced similar pressure for adaptation as the German ones but induced the Spanish regions to pursue a non-cooperative adaptational strategy, which prohibited a redressing of the territorial balance of power. In light of rising adaptational costs the CCAA gradually adopted a more cooperative strategy, which resulted in a profound change of Spanish competitive regionalism.

The centralization of implementation and the uneven distribution of “say and pay”

Europeanization posed a serious challenge to the still fragile territorial institutions of Spain. Similar to the former Art. 24 of the German Grundgesetz (GG), Art. 93 of the Spanish Constitution allows for the transfer of both national and regional competencies to the European level without requiring the consent of the CCAA. Unlike the Länder, the CCAA do not have any co-determination powers to lose when national competencies are transferred to the European level because they do not participate in national decision-making. Nor have the CCAA been so concerned about the Europeanization of their autonomous competencies per se, although they are considerably affected in the area of agriculture, fisheries, industry, economic planning, environment, social welfare, and consumer affairs (Borras 1990). The CCAA have, however, felt that the central state would use the implementation of Community Law as an “alibi” to regain competencies previously devolved to the CCAA (Pujol 1987: 25).

When Spain joined the European Community in 1986, the Spanish administration faced a huge implementation burden.

The first empirical part of this book analyzes the effect of Europeanization on German territorial institutions. Chapter 4 briefly maps the formal and informal institutions of the German federal system. I argue that the institutional culture of multilateral bargaining and consensus-seeking induces the Länder to pursue a cooperative strategy of “compensation-through-participation” in responding to centralization as the major challenge to their institutional autonomy. The Länder have always aimed to be compensated for their losses of regional self-determination through co-determination rights in federal decision-making. This sharing of adaptational costs has allowed for a redressing of the territorial balance of power through an incremental process of flexible adjustment avoiding structural reforms.

Chapter 5 starts by exploring the extent to which Europeanization has exerted pressure for adaptation on German territorial institutions. The transfer of domestic policy competencies to the European level has caused an uneven distribution of “say and pay” for the Länder which has seriously challenged the territorial balance of power in German federalism (1). Then, I show how the Länder have subsequently pushed for comprehensive co-decision powers in the formulation and representation of the German bargaining position in European policy-making in order to redress the territorial balance of power (2). I argue that this compensation-through-participation strategy of the Länder has succeeded in redressing the territorial balance of power (3) which facilitated a flexible adjustment of German territorial institutions to Europeanization.