|
|
EC law's acceptance may have been facilitated by its 'threat' to administration's domestic capabilities being relatively isolated. Yet a corollary of this is that it becomes proportionately harder to argue that it is the involvement of judicial networks that has contributed to the embeddedness of EC law and to the endurance of the European Union.77 For the judicial stick does not seem, in practice, to be present to beat and cajole the administration into transposing, applying and enforcing EC law. The puzzle gets deeper as the performance of the British government, when measured by a number of indicators, has been pretty obedient. The early 1990's witnesses a significant growth in the amount of secondary legislation that national governments were required to implement. Notwithstanding this the Commission has lodged and successfully won only 7 enforcement actions against the British Government in the whole of the 1990's.78 This level of compliance is reflected in Commission reports on transposition of directives at both a general79 and at a sector specific level.80 It is also manifested in a willingness of the British administration to reform laws to comply with adverse Commission opinions.81
Undoubtedly, one variable is the formal pull of the law. There are costs to the breach of any law in the tag of lawlessness that attaches to the perpetatator and, as a feature of all law is that it lends itself to obedience for it's own sake, law also has certain inductive effects.82 These have been reinforced by the approach to transposition of the British Government adopted in July 1999. Whilst individual Ministries are, of course, responsible for implementation of directives (or in some cases, regulations) which fall within their policy-umbrella, they are all now subject to the guidelines offered by the Cabinet Office in its `Checklist for the Transposition of European Legislation'.83 On their face these seem to advance administrative discretion by not `framing' transposition as a formal legal venture. Transposition is to be done within the context of the Minister choosing from a series of policy options presented before her. The option chosen must include, as one of its goals, the minimisation of regulatory costs. This discretion is qualified, however, by the requirement that an assessment must be made of the legal risks of the adoption of a particular option. This analysis does not address the question of whether the option breaches EC law, but the more strategic one of what is the risk of litigation and the seriousness of the costs of litigation. Whilst ostensibly highly calculative in nature, the reality is that the Guidelines are likely to reinforce compliance by Ministries, by making them highly risk averse. If a challenge is mounted on legal grounds not only will that have to be addressed in the courts, but, administratively, the Ministry will be deemed within Whitehalll to have `miscalculated' its legal risk analysis. An additional administrative cost is therefore added to non-compliance, that of breach of guidelines issued by one of the most powerful units in British Government.
The second factor that generates administrative compliance with EC law is its heavy normativity. Normativity, in this context, means the establishment of some common denominator which seeks to stabilise and standardise behaviour (normalisation) through reference not to some external standard but to 'the characteristics or attributes of the things, activities, facts or populations to which it is to be applied'.84 Directives on mutual recognition, for example, set out acceptable standards for goods, professionals or services etc. The normative qualities of law are most typically contrasted with its coercive qualities which are manifested most strongly through the judicial enforcement of its sovereign authority. To be sure, in any legislation, there is a balance and tension between these two qualities. It would appear, however, that in the case of EU law, with whole swathes in practical terms unaffected by the coercive capabilities of the 'sovereign legal order' set up by the Court of Justice, its normative qualities are heavily predominant. This is hardly surprising. Scharpf has observed that, the fractured public sphere of the European Union results renders any form of input-oriented legitimacy problematic, as the absence of a collective identity provides no basis for losers or minorities to accept majoritarain or explicitly redistributive measures. The legitimating devices of the European Union have therefore always been more heavily output-oriented, namely couched in terms of its ability to solve problems that have proved intractable elsewhere.85
Within such a regime, a feature of law is that it is never an isolated artifact but incorporates itself into a 'continuum of apparatuses ... whose functions are the most part regulatory.'86 The role of law is not merely to set out and formalise the norm in question. It also, in Foucault's words, `effects distributions (of power) around the norm'.87 The formal and general authority of law is used to set out the standards and the forms of knowledge which will be used to adjudge whether a particular course of conduct is appropriate and the institutions which will carry out that adjudication.
This has important institutional consequences for whom EU law is empowering and disempowering. For EU law is engaged, primarily, in the politics of recognition through its formalisation of authority, justification of intervention and valorisation of activities. A feature of European Union legal integration is therefore that it has not led, on any significant scale to the `emergence of regulatory gaps', disempowering the ability of States to regulate at a domestic level,88 but has become directly involved in the capacity-building of national administrations. In particular, a variety of empirical studies suggest that it has either been used to empower pre-existing centres of administration or as a cypher for a more wide-sweeping centralisation and rationalisation of administrative power. Fligstein and Mara-Drita's pioneering study of single market legislation found that it tended to contour the nooks and crannies of the pre-existing EU political economy.89 In the single market programme the creation of new rules of exchange, through the New Approach to Harmonisation, tended to be concentrated in high-export industries. In other industries there was a greater concentration on preserving existing governance structures whose autonomy was protected through the device of mutual recognition, which provided for a horizontal network of contacts between national administrative centers with very little external steering done by any of the supranational authorities.90 More directly within the United Kingdom, in areas as diverse as broadcasting,91 regulation of food stuffs,92 competition,93 environmental protection94 and policing,95 implementation of EC directives was no more than a catalyst or contributor to a broader process of reform which in all cases led to the establishment of new centralised regulatory institutions or the formalisation and consolidation of existing central ones.
To argue, simpliciter, that administrations developed and implemented EC law because it increased their power is too crude. For it detaches the question of narrow institutional rents too abruptly from the broader tasks of problem-solving and policy-making that inevitably pervades implementation. This capacity-building rather takes place against a backdrop in which powerful, wider frames of administrative problem-solving have led since the nineteenth century to a specialisation and extension of government.96 In this the development of EC law coincides not merely with the extension of government but also its elaboration. Yet, there is a catch. For this can lead to implementation generating internecine administrative tensions. Offe has observed how the development and specialisation of administration has brought with it an internal pluralisation and fragmentation of the State apparatus. Administrative units/sub-units develop their own autonomous pathologies of rent-seeking, problem-solving and clientelism, which bring them more often than not in competition with other administrative sub-units.97 The implementation of EC law reinforces this in that it does merely elaborate national administrative power, but, by seeking to adjust or 'perfect' existing regulatory processes, it redistributes that power through creating new divisions, designations and specialisations. Some of the central tensions provoked by EC law and, in institutional terms, some of the most likely foci of resistance are likely to arise from this administrative adjustment.
Case studies have therefore illustrated how administrative sub-divisions, operational practices and centre-periphery tensions have in some jurisdictions increased the administrative costs of implementing EC law and generated bureacratic rents, constituencies and pathologies opposed to its implementation.98 The problems have been less within the United Kingdom because of the traditional hegemony of central governmental institutions.99 It is also tempting to spectulate that it has been facilitated by the proliferation of centralised agencies - such as the agencies regulating the utilities, the Environment Agency and the Financial Services Authority - in the 1980's and 1990's whose position has been consolidated by the conferral of new tasks under EC law. Despite occasional tensions within central government,100 it has therefore been relatively simple for British Governments to implement and transpose EC law as both of the administrative costs and bureaucratic rents opposing such implementation have been less than in States with highly federalised or devolved systems of government.
Be that as it may, it is possible to speculate - no more than that - that there is a form of administrative adjustment that has provoked as much resistance in the United Kingdom as elsewhere. In particular, the implementation of EC law has led increasingly to a 'governmentalisation of government' within the United Kingdom. The introduction of mechanisms such as audit, review by administrative unit by another, deliberative procedures review have increasingly subjected government, within a purely domestic context, to the same processese of external management and review as that to which it subjects private citizens. To be sure, this is a feature of our age,101 but as it goes to the heart of what is government and who governs, one would anticipate resistance from vested interests. Such resistance would not manifest itself at the formal level of transposition, but is more likely to manifest itself at the moment of review or management (eg at the moment of application).102
77 cf J. Weiler, `A Quiet Revolution: The European Court of Justice and Its Interlocutors' (1994) 26 Comparative Political Studies 510; A-M Slaughter & L. Helfer, 'Toward a Theory of Effective Supranational Adjudication' (1997) 107(2) Yale Law Journal 273.
78 During that time it also brought one unsuccessful action, Case C-300/95 Commission v United Kingdom [1997] ECR I-2629, and the number might rise to 8 if the Court follows the Opinion of Advocate General Alber in Case C-359/97 Commission v United Kingdom, Opinion of 27 January 2000.
79 At the end of 1998 the United Kingdom had notified implementing measures for 1402/1455 of the directives applicable within its territory, 96.36%, EC Commission, XVIth Report on Monitoring the Application of Community Law, COM (99) 301 final, 103.
80 At the end of 1999 in the field of the single market the United Kingdom was estimated by the Commission to have implemented 97.2% of the Directives. Only Sweden, Finland, Denmark and Spain had better records, http://europa.eu.int/comm/dg15/en/update/score/smd.pdf <accessed 22 February 2000>
81 497 letters of formal notice - the first formal stage of an enforcement action - were brought against the United Kingdom in the period 1994-1998 out of an EU total of 5695. This was a below average number, but the most striking feature was how few were eventually referred to court. Only 6 were referred to court, 1.2%, against 355 for the whole of the EU, 6.23%, EC Commission, XVIth Report on Monitoring the Application of Community Law, COM (99) 301 final, Table 2.1
82 A separate but similar argument is that compliance might be induced through national officials belonging to the same epistemic communities as the EC legislators, P. Haas, `Compliance with EU directives: insights from international relations and comparative politics' (1998) 5(1) JEPP 17, 30-33. This might indeed have some pull. The difficulty with knowledge-based arguments is that even on their own terms the discourse-coalition literature has shown how particular time-space contexts will mould cognitive and communicative understandings of particular `discursive frames', so that, in the treatment of causation, it becomes increasingly problematic to analogise discursive frames across varying contexts. On `discourse coalitions' see M. Hajer, The Politics of Environmental Discourse (1995, OUP, Oxford) 66-72.
83 These are now on the web. See http://www.cabinet-office.gov.uk/regulation/1999/europe/transposition.htm
84 M. Dean. Governmentality: Power and Rule in Modern Society (1999, Sage, London) 120.
85 F. Scharpf, Governing in Europe: Effective and Democratic? (1999, OUP, Oxford) 7-16.
86 M. Foucault, History of Sexuality: Volume One (1984, Penguin, Harmondsworth) 144; M. Dean, supra n.84, 118-120
87 Ibid., 144
88 cf F. Scharpf, `Negative and Positive Integration in the Political Economy of European Welfare States' in G Marks etal., Governance in the European Union (1996, Sage, London).
89 N. Fligstein & I. Mara-Drita, `How to Make a Market: Reflections on the Attempt to Create a Single Market in the European Union' (1996) 102 American Journal of Sociology 1, 14-28. Interestingly, the one policy that would seem to confront this, the use of partnership in the administration of the structural funds has founded precisely upon its inability to recreate new local or regional centres of administrative power, L. Hooghe & M. Keating (1994) `The Politics of EU Regional Policy'(1994) 1(3) JEPP 367.
90 In this respect on financial services and lawyers within the United Kingdom see A. Alcock, "UK implementation of European investment services directives" (1994) 15 Company Lawyer 291; C. Hadjiemannuil, Banking Regulation and the Bank of England (1996, LLP, London-New York-Hong Kong) 195-225; H. Adamson, Free Movement of Lawyers (1996, 2nd Edition, Butterworths, London) 72-74.
91 C. O Leary & D. Goldberg, `Television without Frontiers' 215, 224-233 in T. Daintith, Implementing EC Law in the United Kingdom (1995, John Wiley, Chichester).
92 N. Burrows & H. Hilam, `The Official Control of Foodstuffs' 139, 144-160 in T. Daintith, Implementing EC Law in the United Kingdom (1995, John Wiley, Chichester).
93 C. Bellamy, 'The Europeanisation of United Kingdom Competition Law' in N. Green & A. Robertson (eds) The Europeanisation of UK Competition Law (1999, Hart, Oxford); S. Eyre & M. Lodge, 'National Tunes and a European melody? Competition Law Reform in the United Kingdom and Germany (2000) 7(1) JEPP 63
94 A. Weale, `Environmental regulation and administrative reform in Britain' in G. Majone (ed.) Regulating Europe (1997, Routledge, London)
95 B. Hebenton & T. Thomas, Policing Europe (1995, Macmillan, Basingstoke) 25-37.
96 A survey of 419 constitutions between 1870-1970 found that both administrative jurisdiction over social life and mechanisms of implementation doubled during the period to, on its methodology, 56 and 45 respectively, J. Boli, `World Polity Sources of Expanding State Authority and Organization, 1870-1970' in J. Thomas, J. Meyer, F. Ramirez & J. Boli (eds) Institutional Structures: Constituting State, Society and the Individual (1994, Sage, Thousand Oaks, California) 72.
97 C. Offe, Modernity and the State (1996, Polity, Cambridge) 60-64.
98 The most wide-ranging study that this supports this is F. Duina, Harmonizing Europe: Nation-States within the Common Market (1999, State University of New York Press, Albany). See also T. B¯rzel, `Towards convergence in Europe? Institutional adaptation to Europeanization in Germany and Spain' (1999) 37(4) JCMS 573; C. Knill & A. Lenschow, `Coping with Europe: the impact of British and German administrations on the implementation of EU environmental policy' (1998) 5(4) JEPP 595; C. Spanou, `European integration in administrative terms: a framework for analysis and the Greek case' (1998) 5(3) JEPP 467.
99 Even in the implementation of structural funds the influence of central government is strong, I Bache, 'The extended gatekeeper: central government and the implementation of EC regional policy in the UK' (1999) 6(1) JEPP 28.
100 Tensions have arisen between the House of Lords and the department of Environment, Transport and the Regions about the `semi-legislative' role of the EU Network for the Implementation and Enforcement of Environmental Law (IMPEL). House of Lords Select Committee on the European Communities, Community Environmental Law: Making It Work (Session 1997-98, 2nd Report, HMSO) para 77.
101 On advanced liberalism see N. Rose, Power and Freedom (1999, OUP, Oxford) 138-147.
102 There is considerable anectodal evidence therefore that the Environmental Impact Assessment Directive has provoked both high-level and low-level resistance. R. Williams, `The European Commission and the Enforcement of Environmental Law' (1994) 14 YBEL 351; a. Brown, `Filtering EU Environment Policies through the Government Layers: The EIA Directive in Scotland and Bavaria (1999) 8(4) Environmental Politics 66.