Introduction
Compliance with European Union (EU) law has been a concern for EU researchers and practitioners in the last two decades, derived from the realisation of the existence of important compliance deficits regarding EU legislation. During the 1990s, EU official publications and a rising number of cases brought before the European Court of Justice (ECJ) highlighted that an increasing percentage of EU laws were not being complied with (Thomson et al. Reference Thomson, Torenvlied and Arregui2007). These deficits have been perceived as a threat to the effectiveness of the EU regulatory system and ultimately the credibility of the EU. The EU has been seen as a political system able to adopt legislation in an increasing number of areas, but unable to ensure its application.
To explain these compliance failures, attention has been given to examining why certain EU member states comply with EU law better than others. Different national institutional features have been favoured explanations for the differential degree of adoption of EU law: the fit between EU demands and national policies (Duina Reference Duina1999; Börzel Reference Börzel2003), the existence of different administrative cultures across member states (Knill Reference Knill1998; Falkner et al. Reference Falkner, Treib, Hartlapp and Leiber2005) and the number of national actors with veto powers (Haverland Reference Haverland2000; Giuliani Reference Giuliani2003). However, and although the responsibility for enforcing compliance with EU law is eminently a national obligation, the impact of national enforcement in the adoption of EU law has been an elusive element in the literature. While the role of the Commission and the ECJ in enforcing EU law has received significant attention (amongst others, Tallberg Reference Tallberg2002; Sverdrup Reference Sverdrup2003; Macrory Reference Macrory2005), these institutions, with no inspectorate or auditing functions, have only limited powers to ensure that EU legislation is adopted and in force throughout the EU (regulated by articles 108, 258 and 259, 260 and 261 TEU). National enforcement organisations – administrations, inspectorates, policing bodies, judges and magistrates – manage national disciplinary action against actors targeted by EU law and are responsible for making sure that the legislation is implemented and monitored and breaches are penalised.
This article asks whether and to what extent the differences in national enforcement institutions can explain the existing cross-national variations in compliance with EU law. In doing so, it seeks to compensate for the dearth of studies examining the effects of national variations in the enforcement of compliance with EU law. It argues that, as law enforcement is a core function of government and one of the most defining features of political power, examining the role and impact of the national enforcement of EU law can contribute to our understanding of the functioning of the EU.
The article shows that the regulatory literature, which has conventionally been applied exclusively to the nation state, can provide adequate insights to understand the role of national enforcement for EU law compliance. However, employing this literature has required going beyond understanding EU compliance as a simple transposition of the EU laws by the national governments, which is a frequent assumption of the EU literature (Mastenbroek Reference Mastenbroek2005). Instead, compliance is more accurately considered here to be the result of meeting the requirements of EU law by the EU member states. It has also required introducing an examination of the role of national enforcers as a constituent part of the EU political system, which the EU literature has rarely done. While the national governments are responsible vis-à-vis the EU institutions for complying with EU laws, EU compliance results from the performance of other actors operating within the member states, such as national regulatory agencies, subnational authorities, the police and the courts. Examining the performance of these national actors during the implementation period can generate successful explanations for the lack of compliance with EU law by EU member states. Thus, overall, the article claims for a more vigorous use of the insights of implementation and enforcement literature into the analysis of EU compliance in order to provide better explanations of how the EU works as a multi-level, complex regulatory system.
The research undertakes a structured, focused comparison (George and Bennett Reference George and Bennett2005) of the enforcement of one EU law, the Urban Waste Water Treatment Directive (UWWTD), which was adopted in 1991 to protect the water environment of the EU, in two member states, BritainFootnote 1 and Spain. Although the pressures to comply imposed by the EU institutions were similar in both countries, and neither of them was in a better position than the other to meet the directive's policy requirements, by the end of the implementation period, the UK complied with the directive better than Spain, which failed more frequently to meet its requirements.
Following the literature on the topic (Ayres and Braithwaite Reference Ayres and Braithwaite1992; Shavell Reference Shavell1993; Kagan Reference Kagan1994; Baldwin Reference Baldwin1995; Macrory Reference Macrory2005), the article seeks to examine systematically whether national enforcement in these countries may account for these differences. It looks at two features, the first of which concerns the magnitude of the potential sanctions to discipline national actors targeted by EU law if they fail to assume their obligations. It is a de jure examination of the comprehensiveness of national sanctions to punish compliance failures. The second feature looks at the de facto use of the national instruments to discipline national actors targeted by EU law, and seeks to examine whether a more frequent use of these instruments relates to a more compliant performance.
National enforcement of EU law in Spain and Britain fluctuated between an absence of monitoring and disciplinary action against non-compliant actors and a tight follow-up of their performance and the issuing of penalties in case of breach. Thus, EU standards, even when clearly defined, did not apply equally throughout the EU; their effects depended on how national enforcement arrangements shaped and constrained the behaviour of national actors. In line with the insights of the regulatory literature, the research presents evidence that a more deterrent effect of national enforcement – both with regards to the potential and the actual punishment for compliance failures – facilitated a more compliant performance by national actors. Indeed, Britain, with more comprehensive and active mechanisms for national enforcement, complied better with the UWWTD standards than Spain.
Thus, the role of national enforcement is, along with explanations that look at the fit between national and EU laws, the cultural features of the administration and the number of veto players, a crucial element that contributes to explaining the existing cross-national variation in compliance with EU standards and hence the success or failure of the EU to ensure the adoption of its standards. According to the findings of this article, the EU is better conceived as an “enforcement patchwork”, where the pressures to comply with EU law vary amongst member states. Examining the nature of these enforcement pressures at the national level and their effects on the functioning of the EU can provide a valuable understanding of the regulatory capacity of the EU and its ability to ensure the adoption of EU law.
The remainder of the article is divided into seven sections. The first provides an overview of the explanations given to the existing cross-national variations in compliance with EU law. Subsequently, the effects of enforcement on actors’ behaviour, according to the regulation literature, are discussed with the purpose of defining the elements that will be employed to analyse the case study. Next it turns to explain the content and demands of the directive, and the distribution of responsibilities for monitoring and disciplining breaches in Spain and Britain. The ensuing sections compare the enforcement instruments employed in each country, as well as their actual use. The article closes with a comparison of the findings, and a conclusion that brings the results together.
Explaining cross-national variations in compliance with EU law
In the last 20 years, as the EU has broadened the areas subject to policy making, increasing attention has been given to the impact of EU law on the policies and institutions of the member states. Many of these studies have aimed to explain why certain EU member states seem to comply with EU demands better than others and have looked at the effects of national institutional features on the degree of compliance with EU requirements. Some authors have supported approaches linked to the idea of a “goodness of fit” or match between the demands of the EU and the existing policies of the member states: a member state with less fit will find it more difficult to adjust to EU laws, as the costs of complying with EU requirements will be higher (Duina Reference Duina1999; Börzel Reference Börzel2003). Another set of explanations has looked at the cultural features of national bureaucracies (Knill Reference Knill1998; Falkner et al. Reference Falkner, Treib, Hartlapp and Leiber2005); depending on features, such as the flexibility of national administration, its degree of cooperation or competition or the importance given to honouring international agreements, EU member states comply with EU requirements or fail to do so. From a different perspective, other authors have focused on the role of key domestic actors in the implementation of EU policies (Haverland Reference Haverland2000; Giuliani Reference Giuliani2003). They show how the number of domestic actors with a say in the implementation of EU law at the national level and their preferences and opportunities to block EU legislation, define the degree of compliance with EU law.
To account for EU law compliance variation, these studies have frequently used transposition data – that is, the incorporation of an EU law into the national regulatory framework (Giuliani Reference Giuliani2003; Falkner et al. Reference Falkner, Treib, Hartlapp and Leiber2005; Thomson et al. Reference Thomson, Torenvlied and Arregui2007; Berlund Reference Berlund2009; Steunenberg and Rhinard Reference Steunenberg and Rhinard2010). Comparing the date of the actual transposition with the date by which, according to each EU directive, EU member states should have transposed the directive into national legislation, gives evidence, according to these studies, of how good or bad a member state is at complying with EU law: the longer a member state takes to transpose the legal text, the worse complier it is. Alternatively, other studies have compared the number of infringement procedures opened against EU member states by the EU Commission and the ECJ for failures to adapt to EU law by the required deadlines (Börzel Reference Börzel2003): the greater the number of sanctions initiated, the worse complier a member state is considered.
The use of transposition and of EU infringements data has had one crucial methodological benefit: as the EU institutions employ homogenous criteria for data collection, this information is easily comparable across all EU member states. However, considering transposition as a proxy for compliance is rather limited: law compliance results not only from transposing EU legislation, but from a process of implementing policy instruments to meet the legislation’ requirements and enforcing such requirements. Transposing EU law does not necessarily entail the adoption of EU standards. As for data on infringement procedures, European institutions have difficulties monitoring the attainment of EU standards on the ground and penalising those responsible for the failures to meet EU standards, as there is no EU inspectorate or auditor. Thus, the infringement procedures are just a fraction of the total number of compliance failures that actually occur across the EU member states (Börzel Reference Börzel2003). Moreover, employing these data involves assuming that EU institutions behave equally towards any non-compliant member state, something that has also been challenged (Garrett et al. Reference Garrett, Kelemen and Schulz1998).
For this reason, a more precise estimate of the degree of the adoption of EU law involves examining the measures put in place by the EU member states to ensure that EU standards are upheld and examining their results at the national level. National enforcers have a crucial role here: if national enforcers do not urge domestic actors to comply with EU standards, they risk failing to take effect. Indeed, EU law compliance concerns not only the activities of EU institutions, but also the enforcement of EU law at the domestic level by national enforcement actors (Demmke and Unfried Reference Demmke and Unfried2001; Sverdrup Reference Sverdrup2005).
The deterrent effect of national enforcement
Analysing the impact of national enforcement for EU compliance can greatly benefit from the insights of the regulatory, the law and economics literature, which have focused on the effect of enforcement on actors’ behaviour (Ayres and Braithwaite Reference Ayres and Braithwaite1992; Shavell Reference Shavell1993; Kagan Reference Kagan1994; Baldwin Reference Baldwin1995; Tallberg Reference Tallberg2002; Macrory Reference Macrory2005). Taking actors as boundedly rational decision makers, enforcement has been considered necessary to ensure compliance with the law; only when “it pays the parties to live up” to the agreements will actors actually meet their obligations (North Reference North1990). In absence of enforcement, if the benefits of non-compliance are higher than the costs, national actors will have strong incentives to disobey the law. Thus, efficient compliance requires making violations unattractive by increasing the costs of non-compliance. Deterrence, or crime prevention through fear of punishment, is the mechanism that contributes to law compliance (Shavell Reference Shavell1993).
As regulators can rarely monitor and discipline every action of every actor – the costs of doing so are generally excessively high – developing a “general” deterrence effect, by which enforcement has a discouraging effect not only on the sanctioned actors themselves, but also on other actors that could potential commit similar offences, is necessary to ensure compliance with the law (Shimshack Reference Shimshack2007). Ayres and Braithwaite (Reference Ayres and Braithwaite1992) have elaborated on this idea via the concept of an “enforcement pyramid”, composed by different hierarchically graduated responses to offences. Taller pyramids – that is, enforcement systems capable of assigning greater penalties to potential offences – generate a greater general deterrence effect and thus more compliance with legal requirements.
Following this literature, the present analysis focuses on two elements. The first regards the sanctions that can potentially be issued against offenders and concerns both the scope of the behaviour subject to penalties and the severity of the sanctions at the national level. If only few actions are punishable, and if the sanctions are set too low, enforcement will not be able to deter undesirable behaviour. Effective enforcement requires that all undesirable behaviour is subject to disciplinary action, and that sanctions are sufficiently high to dissuade actors from committing an offence. If national enforcement rules are more comprehensive and severe, compliance with EU law is expected to be greater.
The second element involves the examination of the actual enforcement action initiated against national actors targeted by EU water law. More active enforcement occurs when monitoring to prevent rule breaking is more frequent and when more breaches are accompanied of a sanction. If enforcement is more active, the degree of compliance with EU law by the member states is expected to improve, as actors will avoid getting caught and facing sanctions.
Compliance with the UWWTD in Spain and Britain
To examine the deterrent effect of national enforcement, the present article analyses how the standards set by one EU directive, the UWWTD, have been enforced in two member states – Spain and Britain. It focuses on the measures in place from the moment when the directive was transposed in each country (1994 in BritainFootnote 2 and 1995 in Spain)Footnote 3 to December 2005, the final deadline when, according to the UWWTD, member states needed to comply with all the directive's standards.
EU directives are the most widely employed EU regulatory act. They legally bind member states to achieve a particular result, but leave to the national authorities the choice of methods to do so (Article 288 TEU). Compared to other directives, the UWWTD is a rather defined and unambiguous law that established clear detailed requirements to which all member states needed to comply, thus limiting the opportunities to engage in “creative compliance”, that is, activities which offend the spirit but not the letter of the law (Ogus Reference Ogus1998, 780). This lack of ambiguity limited the degree of discretion that EU member states could employ to adjust the directive to their preferences. Thus, for the purposes of the present analysis, the UWWTD is adequate in that it allows comparing the enforcement of the same EU standards in different countries – rather than the interpretation made by the EU member states of such EU standards (Kelemen Reference Kelemen2000).
Adopted in 1991, the UWWTD sought to limit the pollution of EU coastal and internal waters. To do so, it demanded member states introduce infrastructure to provide water treatment to all urban waste water discharges. The treatment could be primary, secondary or tertiary depending on the technology employed for pollution removal. The directive gave instructions to member states on how to prioritise the waste water treatment by setting two criteria: the polluting load of the waters and the type of receiving waters including sensitive areas (the most polluted), normal areas and less sensitive areas (the least polluted). The UWWTD gave preference to first treating the most polluting discharges made into the most polluted waters and set a timetable with successive deadlines that EU member states needed to meet, with 31 December 2005 as the final date by which all discharges needed to comply with all the directive's requirements.
Britain and Spain are appropriate cases to examine the effect of national enforcement on EU law compliance. According to EU data, Britain and Spain were, respectively, amongst the better and the worse compliers with the UWWTD; out of the 12 first EU member states, Britain was the third country to transpose the UWWTD; Spain the eighth. By 2003, the UK, along with Greece and France, gave appropriate treatment to around 60 per cent of its discharges, while in Spain, like in Italy, Portugal and Ireland, less than half of the discharges met the requirements for waste water treatment established in the directive (European Commission 2007). However, when the directive was adopted, it challenged the national policies for management of urban waters in both countries. Indeed, before the adoption of the UWWTD, neither UK nor Spain had a comprehensive policy for the provision of water treatment to urban waste waters or a comprehensive national policy for water treatment and sanitation (OFWAT 1994; Direccion general de calidad de las aguas 1995). This begs the question of why countries that initially faced difficulties to meet EU requirements evolved differently in their compliance with the law.
To confront the challenge of the UWWTD, Britain and Spain had very different institutional frameworks for the provision of water services. Britain has followed a regulatory model, whereby water companies needed to comply with EU demands under the monitoring and control of independent regulatory agencies (Bakker Reference Bakker2010). Indeed, during the 20th century, Britain regionalised and then privatised the water sector, followed by a comprehensive reform of the regulation of the sector. Since 1989, ten private water companies in Britain operate vertically as integrated regional monopolies in the areas identified in their licences, charging their customers a price that incorporates the achievement of the environmental and social protections standards set by EU law and by the government policy objectives. Regarding the UWWTD, these water companies had the responsibility for ensuring that waste waters received the appropriate treatment by building, if required, the necessary infrastructure to meet with UWWTD pollution limits. Water companies operated under the regulation of the Water Services Regulation Authority (commonly known as OFWAT) and the Environmental Agency. OFWAT is responsible for the economic regulation of the water companies [Water Industry Act 1991 (WIA), s. 2A]. It examines the water companies’ operating and capital expenditure plans, and sets the price limits that water companies can charge to customers, so they do not abuse their monopolistic position. OFWAT, in this sense, was responsible for overseeing water companies' progress in the infrastructure required to comply with the UWWTD standards. The Environment Agency is responsible for enforcing water quality standards in inland, estuarial and coastal waters (Environment Act 1995). During the implementation of the UWWTD, the Environment Agency was in charge of ensuring that water companies did not go over the allowed pollution limits in their consents to discharge, so the UWWTD environmental standards were upheld.
Spain has followed a model for urban water management by which environment policies have been put in place by regional and national authorities, while local government has been in charge of the daily running of the infrastructure.
The development of the democratic regime during the late 1970s and 1980s was simultaneous with the development of a national environmental water policy. Whereas the Franco dictatorship was characterised by a strongly centralised government with very weak and no comprehensive environmental policies, democratic Spain gave new responsibilities for environmental policy to different territorial tiers. According to the new distribution of competences, the national and regional authorities were at the same time in charge of developing the necessary water environmental infrastructure, adopting financial measures to meet EU standards, and of ensuring that all waters under their jurisdictions complied with the environmental pollution threshold of the EU directive. They operated in geographically different areas. The national government was in charge of the nine long, interregional rivers, whereas the 17 regional governments were in charge of the rivers that were within their regional territory and the coastal areas (Ley De 2 De Agosto De 1985, De Aguas; Ley 22/1988, De 28 De Julio, De Costas). As for the local authorities (around 8,100 for the whole of Spain), they were responsible for the day-to-day management of the water treatment plants (Ley 7/1985, of 2 April, Reguladora De Bases De Regimen Local). Their activities were monitored and subject to enforcement by regional and national governments depending on where they took place: by national government in interregional rivers and by regional authorities in intraregional and coastal waters.
But Spain and Britain are not solely different with regards to the organisation of their national enforcement. They have great historical, sociological, demographic, economic and political differences. This presents the problem of equifinality, that is, their degree of EU law compliance could be due to factors, or a combination of factors, different from national enforcement. To overcome this situation, which is intrinsic to much cross-national comparative research and very common in implementation research (Goggin Reference Goggin1986), the present article undertakes a structured, focused comparison (George and Bennett Reference George and Bennett2005) of the instruments employed to monitor and discipline breaches in compliance with EU standards, as well as their actual use. Thus, it seeks to trace systematically and in-depth the influence of one factor – national enforcement – to develop a “causal reconstruction” (Mayntz Reference Mayntz2004) of its influence in the selected cases – not to verify the explanatory power of rival explanations behind the existence of EU compliance variation, which could indeed be many. For this, it poses common, standardised questions that are examined in both cases, making use of the national sources (such as legal texts, official documents and reports) that the national actors in charge of compliance with the UWWTD in each country produced.
Magnitude of sanctions in Spain and Britain
The first element to analyse and compare is the magnitude of sanctions. It asks what sanctions could be imposed against the implementers of the UWWTD requirements in Britain and in Spain during the implementation years until 2005. The analysis below shows that British implementers faced a more comprehensive and stricter sanctioning system than their Spanish counterparts when they failed to meet the UWWTD standards.
Magnitude of sanctions in Britain
The UWWTD targeted the ten water and sewerage companies that needed to ensure that the appropriate infrastructure would be in place by the deadlines and that waste water would be treated to the appropriate level. Their performance was overseen by the Environment Agency and OFWAT.
To enforce compliance with the UWWTD standards, the Environment Agency had powers to inspect water companies, investigate their activities, and, if necessary, take action against offenders. The Environment Agency inspectors were entitled to enter the premises of water companies, to remove samples of effluent from their discharges and to interview water companies’ staff to collect information on the companies’ performance (Environment Act 1995). The regulator could examine a company's performance to identify whether breaches had occurred. If a breach in environmental standards was identified, it was investigated to identify whether it was an accidental or deliberate breach and to find its cause. Subsequently, it was classified as a pollution incident ranging from 1 (most polluting) to 4 (least polluting). Depending on the damage caused, the Environment Agency could put in place three different types of enforcing measures: for less grave category 3 and 4 incidents, the Environment Agency might opt to issue a caution, which gave a second opportunity to the polluter to mend their actions. When less grave failures happened, voluntary agreements could be approved between the Environment Agency and the water companies, by which the regulator and the company agreed on a corrective measure. Finally, notices obliged water companies to implement measures to forestall damage or to repair the damage caused. They might be of two types: a “works” (or “improvement”) notice specified what action a permit holder must take to prevent that pollution from entering into controlled waters, so to remove or mitigate an existing damage. A “prohibition notice” was usually issued when the risk of pollution was high; it entailed the ban to carry out a harmful activity. In addition to these penalties, the Environment Agency could initiate a court action. Prosecution was the highest regulatory measure and was reserved to category 1 and 2 pollution incidents. Magistrates’ and Crown Courts dealt with all environmental criminal offences brought to justice. The maximum penalty that courts could impose for an environment incident was £20,000 and/or 3 months imprisonment on summary conviction, which was four times the value of the existing statutory maximum fines for most other crimes (Water Resources Act 1991, s 85).
For its part, OFWAT could initiate an action against water companies that failed to implement the infrastructure plans and the financing instruments to comply with EU law. To do so, OFWAT was responsible for monitoring water companies’ activities to verify that their investment commitments to build water treatment plants and collectors were carried out according to the agreed schedule and to control that water tariff increases were kept within the approved limits. Every June, water companies were asked to provide OFWAT wide-ranging data on their levels of service standards. OFWAT was also to receive annual information on water companies’ environmental performance from the Environment Agency on aspects, such as quality standards for water treatment, distribution and sewerage, pollution incidents and water quality. This regular monitoring permitted OFWAT to oversee how water companies implemented their national infrastructure plans and their price limits during the implementation period [WIA 1991 s 34(3)].
When OFWAT identified that water companies failed to meet their statutory obligations or provided a deficient service, it could impose three types of measures: undertaking, enforcement action and licence revocation. An undertaking was a legally binding instrument by which water companies committed themselves to modify their performance and meet OFWAT's requirements within a period of time. Enforcement actions were monetary sanctions imposed for violating regulatory requirements, calculated by OFWAT depending on the fault. Finally, revoking a company's licence was the strongest sanction that OFWAT could issue against a licensed private company. It was reserved for cases when companies missed their obligations repeatedly, and involved the suspension of all activity of the sanctioned company. Beyond these powers, OFWAT's enforcement did not include initiating court prosecution, as breaches of service duties did not constitute criminal offences (WIA 1991, part II).
In this sense, regarding the sanctions that could be imposed against UWWTD offenders, the British enforcement framework was comprehensive. All activities destined to implement UWWTD requirements were monitored and could be subject to infringement action by regulators. The applicable sanctions were gradually stricter; a series of measures could be progressively employed against non-compliant companies including the high penalties such as licence revocation and criminal proceedings.
Magnitude of sanctions in Spain
As explained above, the UWWTD targeted national, regional and local authorities in Spain. National and regional governments were responsible for putting in place the necessary infrastructure to provide waste water treatment in a timely fashion and to the required level, while local authorities were in charge of the day-to-day functioning of the infrastructure as water services providers. Regarding enforcement of their obligations, whereas local authorities were overseen and disciplined by either the national or regional authorities – depending where they undertook their functions as water service providers – the national and regional governments were not subject to external administrative enforcement to ensure they met their obligations as UWWTD implementers.
Local authorities carrying out their functions in interregional river basins were monitored by the national government by means of the Rivers’ Water Inspectorates (Comisarías de Aguas). The inspectorates were responsible for ensuring that local authorities provided primary, secondary and tertiary treatment to waste waters, and for disciplining them when local authorities did not ensure appropriate environmental standards. The inspectorates were entitled to enter the water treatment plants to examine their functioning and to test water quality to identify the degree of contamination and any breaches of environmental standards. Once a pollution incident was identified, the inspectorates could initiate an investigation to clarify the nature of the incident and its causes. The incident was subsequently classified as minor, less severe, severe and very severe, depending on the environmental damage caused, the public health hazard created and the degree of maliciousness of the polluter. For minor and less severe damages, the inspectorates could ask for a preventive and temporal halt of all operations causing pollution. When stopping the pollution activities was impossible, the Inspectorate could instead impose a financial charge on the local authority to help to remedy the damage caused by pollution or a fine for infringing its pollution authorisation. The amount could vary from over €6,000 for minor infringements to over €600,000 for very severe infringements. Finally, the inspectorates were entitled to revoke licences and to order that installations be (temporarily) closed down. In cases when incidents were classified as severe and very severe, they needed to be referred to the Ministry of Environment to determine what particular action to take (Real Decreto Legislativo 1/2001, de 20 de julio, por el que se aprueba el texto refundido de la Ley de aguas, tituloVII).
When local authorities provided services in waters under regional jurisdiction (i.e. rivers whose basins are situated within the borders of a region and coastal waters), they were monitored by regional governments, which had the same competences of the national government and undertook their functions via their regional environmental inspectorates. Regional inspectorates applied the same enforcement rules as their national counterparts, so they could collect samples, enter pollution sites and initiate enforcement measures when consents of discharge were breached. For coastal areas, however, protection was lower – pollution in coastal areas is considered a lesser environmental and public policy hazard. Thus, the most severe infractions could receive a fine of up to €300,500 – half of the highest fine that could be imposed in river areas (Ley 22/1988 de 28 de julio de costas, titulo V).
Regarding national and regional authorities, the measures to monitor and discipline were scarcer. The distribution of responsibilities across the territory made the national and the regional authorities sovereign over their jurisdictions, so no external administrative controls existed to monitor or penalise national or regional authorities that failed to implement measures necessary to comply with the UWWTD, such as the building of infrastructures and the funding of water treatment services. Court procedures could be initiated for this purpose at the insistence of other administrations or any other interested parties that believed public authorities failed to act in agreement with two main principles: legality and guarantee of protection of citizens’ rights and the interests. After the hearing, the administrative courts might invalidate a decision by the administration or decide on a course of action that the administration should take (Ley 29/1998 de 13 de julio reguladora de la jurisdicción contencioso-administrativa).
In this sense, national enforcement in Spain was rather incomprehensive, as monitoring and enforcement actions (which could, however, have high pecuniary value) targeted only local authorities’ activities. Limited mechanisms existed to monitor the activities of the regional and the national administrations, and only the courts could issue penalties for any failure to implement the UWWTD. In comparison with Britain, the magnitude of the enforcement sanctions that could be potentially imposed against national implementers in Spain was significantly lesser.
Use of enforcement action against non-compliance with UWWTD standards in Spain and Britain (1994–2005)
Along with the penalties that could be potentially issued against non-compliant actors, the actual imposition of disciplinary sanctions may also deter infringements. This section assesses the extent to which enforcement powers were employed in Britain and Spain during the implementation period.
Use of enforcement action in Britain
Monitoring the activities of water companies was at the centre of both the Environment Agency's and OFWAT's enforcement activity during the implementation of the UWWTD from 1994 to 2005, whereas the issuing of actual sanctions was much less frequent.
Indeed, the Environment Agency centred its enforcement activity on carrying out site inspections to ensure that water companies met their environmental obligations and that their infrastructure was in good order. Around half of the total number of inspections by Environment Agency was of water companies, which received monthly to quarterly visits. The inspections revealed the water industry as an important polluter: 11 per cent of all the water incidents in England and Wales were caused in waste water treatment plants. Moreover, water companies were systematically situated amongst the top environmental offenders: around 12 per cent of the severest pollution incidents were caused by such plants (Environment Agency 2000, 2006). Despite the high number of pollution offences, the Environment Agency decided to initiate enforcement procedures against polluters only in a small number of cases. Instead, it stated its preference for a restoring approach by which the polluting companies committed themselves to modifying their actions in order to reduce pollution risks. Enforcement notices and cautions were thus reserved to only extraordinary cases. For instance, in 2001, while the number of recorded incidents (category 2−4) was 33,572, only 770 were followed by either a caution or a notice; the rest were dealt with by means of voluntary agreements. As for criminal action initiated against polluters causing a category 1 incident, only 35−50 per cent of the total number faced prosecution. The Agency decided to initiate or continue a prosecution only in cases when the offender had been unfailingly identified and if there was a definite prospect of conviction. Furthermore, the fines awarded on convictions for pollution incidents were significantly lenient if the annual turnover of water companies is considered, oscillating between £1,000 and £17,000, with an average fine for prosecuted business of £8,532 (National Rivers Authority 1995, 1996; Environment Agency 1997, 1998, 1999). The harshest penalty against a water polluter (i.e. Thames Water, in 2003) rose to £70,000 – a reduced figure compared with the company's annual turnover of around £1.1 billion. In the same year, the water company Anglian Water received fines for its pollution infringements of £50,000, while its turnover was of £750 million (House of Commons 2005).
OFWAT's enforcement activities were similarly characterised by a close monitoring of the activities of water companies and a reticent issuing of penalties when service breaches were identified. Indeed, OFWAT showed a strong preference for a remedial and preventive approach rather than the use of disciplinary action. During the implementation of the UWWTD from 1994 to 2005, water companies submitted regular reports that permitted OFWAT to identify the instances when they failed to introduce the infrastructure that would guarantee compliance with the UWWTD requirements. OFWAT reported annually on the performance of each company, highlighting the cases when companies lagged behind their statutory obligations – such was the situation, at different times in the implementation period, of the water companies Northumbrian Water, Southern Water Services, South West Water Services and Welsh Water (OFWAT 1999, 2001). For all these cases, OFWAT decided to employ a case-by-case approach so to analyse the reasons of the failings. It asked companies to submit reports on progress and demanded plans for correcting malpractices. No enforcement orders or licence revocations were ever employed even when water companies’ failures entailed missing UWWTD deadlines. In fact, OFWAT considered that the companies approached their planning and implementation duties with due diligence, and considered that the full completion of the works had been delayed for reasons beyond the direct control of the water companies. Resorting to issuing enforcement orders was, in OFWAT's view, not necessary and could be, in fact, counterproductive (House of Lords 2007).
Thus, examining the use of punitive sanctions in Britain gives evidence of the active role that regulators had during the implementation period. OFWAT and the Environment Agency monitored the activities of the water companies both with regards to their adoption of pollution control limits and their infrastructure building. Significantly, the actual issuing of penalties was rather reduced, as regulators preferred to deter infringements by threatening with disciplinary action rather than by actually imposing sanctions, which were reserved to the worst compliers and thus had only limited deterrent power.
Use of enforcement action in Spain
The analysis of the monitoring and penalising action carried out in Spain from 1995 to 2005 shows that actors targeted by the UWWTD were scarcely monitored and disciplined if they failed to implement the directive's requirements. The use of enforcement in Spain had limited ability to deter national actors; when implementers shirked away from their duties, they rarely received a sanction.
This is not to say that enforcement action was absent during the implementation of the UWWTD. Indeed, both the national and the regional governments introduced measures to monitor pollution levels in the rivers and coastal areas under their jurisdiction as a result of the application of the UWWTD. The national and regional inspectorates installed new sampling water devices that picked up signals regarding water quality in rivers, aquifers and coastal areas in real time, and helped to check certain parameters of pollution across the country – environmental inspectorates could thus identify exactly when pollution exceeded a maximum level. This new system improved the regularity and the precision in the collection of water pollution data and provided more exhaustive information to control the water quality (Ministerio de Medio Ambiente 2009).
However, these measures were concerned with identifying the presence of water pollution rather than with identifying the responsible actor. Controls of the local governments’ infrastructures were very irregular, and visits to sites by inspectorates were infrequent. The records of one of the most active national inspectorates – River Duero – evidence that only 376 administrative sanctions were issued against local authorities in the period 1995 to 2005 out of a total amount of 4,300 urban waste water discharges authorised in that period. Amongst the regions, the degree of monitoring provided by regional governments oscillated enormously, but averaged only three times/year even in the regions that kept a more vigorous environmental policy, such as Catalonia and Andalucia (Consejeria de Medio Ambiente 2000). Even when responsibility was clearly attributable to local authorities and breaches caused clear harm, only a reduced number of pollution incidents were followed with a sanction (Ministerio de Medio Ambiente 2005). In this sense, the use of punitive sanctions against local authorities during the implementation of the UWWTD was inconsistent.
In addition, monitoring and penalising national and regional governments for contravening environmental policy was rather inexistent. Breaches in their duties to build waste water treatment plants were seldom monitored or penalised, despite their direct impact on the degree of compliance with the UWWTD. At the end of the implementation period, the national government acknowledged that an important number of infrastructure plans necessary to comply with the UWWTD, including the building of water treatment plants and collectors in agglomerations in 14 of the 17 regions, had not been completed. The works were estimated to cost over €1,197 million (Ministerio de Medio Ambiente 2007). Similarly, regions failed repeatedly to ensure waste water treatment in several of their towns and cities,Footnote 4 causing, in some instances, the EU institutions to initiate infringement procedures for failing to comply with the UWWTD – such were the cases of the towns of Vera and Sueca, where the responsibility for the construction of adequate treatment infrastructures fell on regional governments. At the domestic level, though, such failures did not command any sanctioning action to the regions for falling short of providing adequate water treatment to urban waste water discharges, and instead, it was the national government that assumed the costs of the EU fines (Fundacion Nueva Cultura del Agua 2004). Spain became in breach of adopting the UWWTD as a result of its failures to ensure the enforcement of compliance with the law at the domestic level.Footnote 5
Comparison of the cases
Although the UWWTD was a strictly defined piece of legislation that made equally strong demands to all EU member states, the comparison shows that national actors targeted by EU law faced different degrees of enforcement pressure at the national level, which derived from both the potential sanctions that they could face if they failed to meet the directive's standards and the actual use of such punitive powers.
Regarding the magnitude of the potential sanctions, British national actors confronted a more comprehensive enforcement regulatory framework to ensure compliance with the UWWTD requirements than its Spanish counterparts. OFWAT and the Environment Agency had powers both to monitor all measures undertaken by water companies and to impose sanctions when they failed to fulfil their statutory obligations. This contrasts with the Spanish case, where, although higher sanctions could be imposed against local authorities for failing to comply with environmental standards, initiating court proceedings was the only measure to punish regional and national authorities if they did not carry out their duties as implementers. Due to this deficit in enforcement rules, Spain developed weak disincentives against national actors shirking their duties. The potential sanctions that Spanish implementers had to face were significantly lesser than those in Britain.
Regarding the use of enforcement powers in Britain, OFWAT and the Environment Agency monitored closely whether companies built the infrastructure to provide water treatment, if they operated within the agreed price limits and whether they surpassed the pollution limits. The regulators followed the performance of water companies, but remained reluctant to sanction the companies when they failed to meet their obligations, preferring to employ voluntary measures rather than penalties to correct infringers’ behaviour. Thus, deterrence in Britain relied on the threat to use disciplinary action, but not on its actual use. In the Spanish case, the use of punitive powers was rather limited. Regional and national authorities focused exclusively on controlling the degree of pollution in water areas, while little activity was carried out to identify responsible agents amongst the local authorities and to address, either via voluntary measures or penalties, the breaches of environmental standards. National and regional authorities understood their role as watchers of environmental quality standards, not administrators of disciplinary measures. As for measures against non-compliant regional or national governments, no court proceedings were initiated for failures to comply with UWWTD demands, so neither national nor regional government faced disciplinary actions for their failures as implementers. During the implementation of the UWWTD, environmental liability in Spain was far from being an extensive practice.
Conclusions
During the last 20 years, studies on EU compliance have given invaluable insights into the functioning of the EU as a political system. They have shown that, under the same regulatory umbrella provided by EU institutions, entrenched national institutional systems coexist (Héritier Reference Héritier1996). Thus, although EU member states implement the same legislation, national institutional features act as “barriers” in preventing homogenisation of the EU member states’ national institutions. The EU has demanded member states introduce the same standards in a wide range of policy areas, but this has not meant the convergence of national practices into a single policy regime (Schmidt Reference Schmidt2002; Page Reference Page2003).
Although a great variety of factors have been examined to explain the cross-national variations in compliance with EU law, the process of enforcing the law by the member states has been scarcely analysed in the literature. Relying on EU transposition data, EU studies have not sufficiently contemplated that compliance success or failure results from a process of implementing national policies that, in a multi-level system as the EU (Hooghe and Marks Reference Hooghe and Marks2001), are enforced both at the national and at the EU levels. Thus, attention has generally been paid to the problem-solving capacities of the member states exclusively at the beginning of the implementation process and not throughout its entirety. However, the article shows that this approach is insufficient, for two main reasons.
First, it is shown that, focusing exclusively on the conditions at transposition gives overly static and insufficient explanations of the member states’ capacities to ensure the actual adoption of the legislation. In the cases analysed, both Spain and Britain faced at first a mismatch between the EU demands and their national practices – which, according to EU approaches focusing of the misfit between European rules and existing institutional and regulatory traditions (such as Knill and Lenschow Reference Knill and Lenschow1998; Duina Reference Duina1999; Börzel Reference Börzel2003), should have resulted in low degrees of compliance with EU requirements. However, during the implementation process, Britain had a stronger capacity to ensure the adoption of national policies that would guarantee meeting EU standards – this was not the case in Spain. Analysing the coercive powers of national enforcement institutions throughout the implementation process has revealed this, but doing so has required moving away from considering compliance as the result of a single act of transposing EU law, as generally assumed by EU scholars (amongst others, Börzel Reference Börzel2003; Giuliani Reference Giuliani2003; Falkner et al. Reference Falkner, Treib, Hartlapp and Leiber2005; Steunenberg and Rhinard Reference Steunenberg and Rhinard2010), and to see it as product of a process of adopting national policy instruments, which continues once a directive is transposed. Compliance (or lack thereof) results from the strategic interaction and the adjustments between national actors responsible for ensuring compliance and targeted by EU standards, even when they are as strictly defined as in the UWWTD – let alone other EU decisions allowing more national discretion.
Second, focusing on transposition limits an understanding of the mechanisms of policy change within the EU. Instead, by examining the implementation process, the cases here have given evidence of how differently EU rules are applied, or “activated” (Aubin Reference Aubin2008) to individual cases so to become effective and to produce particular desired effects. National disciplinary powers, as distributed by the political authorities in exercise of their sovereign powers, are a key mechanism to ensure policy change, as they modify the system of incentives for misbehaving; the threat of imposing sanctions, as well as their actual issuing, has the capacity to alter actors’ preferences and performance, restraining undesirable behaviour. Like this, the article provides an explanation of EU compliance that does not fall into the development of black box theories whereby certain national features are correlated to a particular outcome – EU compliance – with limited attention to the processes that explain this outcome (as criticised in Jordan Reference Jordan2003; Versluis Reference Versluis2007). These theories are insufficient, because they do not satisfactorily examine the means by which national institutional frameworks constrain behaviours and distribute resources to ensure compliance.
Overall, the analysis of the implementation of the UWWTD in Spain and Britain shows that national institutional frameworks and regulatory traditions have generated different enforcement instruments, which have shaped whether and how EU law is complied with. Whilst the EU's regulatory agenda dominates the regulatory agendas of the member states in many areas such as environmental or social policy (Kelemen Reference Kelemen2000), the role of the European nation state has not weakened and continues to be central in the regulation and administration of economic and social activities in the EU. Indeed, at a time when EU institutions lack adequate monitoring and disciplinary powers to control whether EU law is complied with, the development of similar mandatory monitoring requirements and minimum national penalties for failures to comply with EU standards could create a similar regulatory environment for all targeted policy actors across the EU. However, proposals to do so have been met with resistance by the member states, arguably due to the difficulties of finding common agreement on an issue that addresses the core powers and responsibilities of the EU countries. So, only guidelines and recommendations for member states on how best to enforce EU legislation have been adopted.Footnote 6 Thus, variations of national enforcement are nowadays, and likely to remain an important element that distinguishes EU policy making in the member states. The impact of this variation on the functioning of the EU as an integrated political system, including but also beyond EU law compliance, requires further detailed consideration – which should surely benefit from the existing insights of the wider regulatory and comparative politics literatures. The development of interlinkages between EU-based explanations of EU law compliance and wider approaches to policy implementation and compliance can aid in explaining how the same EU law affects EU countries to varying degrees and via different paths. The present work has attempted an effort to do precisely so.
Acknowledgements
The authors wish to thank David Aubin, Mark Thatcher and Eva Heidbreder for their extensive comments on earlier versions of this article, as well as to the editor of this journal and two anonymous referees.
