Introduction

This chapter further develops analysis of the relationships between law and integration. Chapter 2 argued that a range of political scientists and lawyers consider positive state law – closed legal rules differentiated from their social, political and economic environment – to be central to EU integration processes. Hence ‘integration through law’ has been a key theme in the literature on EU integration. Chapter 3 critically analysed this theme with reference to the literature on new forms of EU governance. This literature draws attention to ‘integration without formal state law’ because EU institutions increasingly resort to ‘soft’ law as well as combinations of ‘soft’ and ‘hard’ law. Soft law includes various forms of non-binding guidelines, recommendations, opinions, circulars, benchmarking and exchange of best practices, as practised in open methods of coordination. Increasing resort to Framework Directives has also been considered as an element of new forms of EU governance. Framework Directives do not seek to impose specific, detailed, prescriptive ‘hard’ EC law obligations upon member states, but only spell out legal obligations for member states in outline. Chapter 5 further questioned the argument for ‘integration through law’ on the basis of empirical data. I suggested that the implementation of the IPPC Directive in fact not only generates traditional, closed ‘hard’ state law, but also open BAT norms, which do not conform to the image of law invoked in the literature on ‘integration through law’.

Introduction

This chapter discusses a number of contributions which form what I call ‘traditional perspectives’ on law and European integration. The literature in this area is rich and multifaceted. The label ‘traditional perspectives’ does not fully capture all its subtleties and variety. Hence, my construction of ‘traditional perspectives’ in this chapter is a heuristic device. By drawing out key ideas which inform these traditional perspectives on law in EU integration, I seek to clarify how ‘critical perspectives’ (discussed in chapter 3) and the book's analysis of the empirical case studies (chapters 5, 6, 7 and 8) challenge some of the tenets of traditional approaches.

The traditional perspectives seek to analyse relationships between law and integration by asking ‘what role does law play in EU integration?’ But this assumes, rather than questions, what law is. Law is regarded as the independent, pre-given variable, while integration is the dependent variable. Moreover, the traditional perspectives draw on a conception of law which is derived from the internal descriptions of the legal field which the formal EU and national legal systems themselves generate. Hence such perspectives emphasise formal and instrumental dimensions of law. Law is also taken to be relatively autonomous and thus to have a significant integrating force which is distinct and separate from the social, political and economic dynamics promoting integration. Traditional perspectives focus on the behaviour of official legal actors when analysing the implementation of EU and national law.

Introduction

Chapter 4 argued that in order to understand more about the nature of law in EU integration it is necessary to analyse ‘EU law in action’. ‘Law in action’ draws attention to the intersections between a ‘social’ and a ‘legal’ sphere because power relations mediate such intersections. They are also a key aspect of BAT determinations. This chapter therefore traces how a political discourse, especially expressions of interests in relation to what constitute ‘the best available techniques’, shape BAT determinations at the first level of the implementation of the IPPC Directive, the drafting of BREF documents for the whole of the EU. BREF writing generates ‘EU law in action’ in various ways. First, the fifth chapter of each BREF lists ‘BAT conclusions’. While these are not legally binding, they have to be taken into account by local permitters when they determine BAT for a specific plant. Second, participants who produce the relevant BREFs make numerous suggestions as to what should be considered as BAT during discussions in the BREF drafting process. Central to the generation of ‘BAT law in action’ is the procedure through which BAT determinations are achieved. This chapter argues that an analysis of a political discourse is key to understanding procedures for determining BAT in the BREFs. It draws attention to the productive nature of power relations by analysing how they construct procedures for determining BAT.

Introduction

Chapters 2 and 3 discussed traditional and critical approaches to conceptualising law in EU integration. Chapter 3 argued that it is necessary to inquire more closely into the nature of law in the process of EU integration. This chapter therefore examines what sociological accounts of law can offer for understanding the nature of EU law. It focuses on a ‘law in action’ approach. This, in turn, draws attention to the points of intersection between a legal and a social sphere and how power relations mediate them. The chapter argues that discourse theory can shed new light on ‘law in action’, specifically how the key legal obligation under the IPPC Directive to use ‘the best available techniques’ is defined in practice. The first section of the chapter begins by defining the terms ‘social’ and ‘legal’. The second section explores different types of intersection between them. The final section analyses Michel Foucault's contribution to understanding power relations in ‘law in action’.

Points of intersection between ‘social’ and ‘legal’ worlds at the heart of ‘law in action’

What does ‘law in action’ mean? The term ‘in action’ draws attention to the ‘dynamic’ element of legal rules, to the ‘living law’ and allows us to explore how rules become ‘animated’ (Selznick, 2003:177; Ehrlich, 1936). In more positivist terms, ‘law in action’ refers to ‘the reality of law’ (Brigham and Harrington, 1989: 45). It also implies that normative orders are not just abstract constructs, but have an empirical basis.

Introduction

This book has discussed law and EU integration relationships. What conceptualisation of law are we presupposing when we say that ‘law’ integrates? Is there really a distinct ‘legal’ dimension to EU integration? The book argues that ‘the role of law in EU integration’ is an empirical question. An integrating function of law should not simply be assumed on the basis of theoretical assumptions. The book therefore discusses small-scale qualitative empirical data on how determinations of ‘the best available techniques’ are achieved in the implementation of the EU Directive on Integrated Pollution Prevention and Control. Implementation of the Directive has been analysed at the EU, the national and the local level by reference to the licensing practices in a German and UK regulatory authority.

The book's argument proceeds in three stages. Firstly, chapters 2 and 3 discuss literature on the role of law in EU integration and examine traditional and critical perspectives. Chapter 2 argues that traditional accounts rely on notions of law which are generated internally by formal legal systems themselves. In these accounts law is portrayed as instrumental, as relatively autonomous in relation to its contexts, and as codified in formal legal texts. Chapter 3 discusses contributions – which also rely on social constructivism – that reject these assumptions, including the literature on new modes of EU governance. Chapter 4, however, argues that there is scope for further development of socio-legal analysis of EU law in action.

Implementing EU Pollution Control is an important book contributing to the sociology of (EU) law. It combines a radical reconceptualisation of the relationship of law and integration in the context of EU integration studies, drawing upon the sociological and critical theories, with an extended case study looking at the ‘law in action’ in the environmental field. Eschewing ‘grand theories’ of European integration or of the role of law in European integration, it takes as its central question the role of law in European integration. However, it proceeds not by treating law as a static unchanging concept (the ‘law in the books’) but by focusing on the micro specifics of ‘law in action’, specifically the implementation of EU pollution control in the hands of national officials in Germany and the UK. The claim is not so much that law ‘integrates’ (or indeed that it does not), but rather that the issue of the role of law in the context of the social, economic and political processes occurring in relation to the EU is above all an empirical one, and not resolvable either by application of legal reasoning techniques or by grand theorising.

The book is therefore an important step forward in analysis, combining both a rigorous theoretical framework with detailed and careful empirical work, based on extensive interviews with pollution control officials in the UK and Germany.

The purpose of this appendix on methodology is to provide transparency in the research process and thus to facilitate critical evaluation of the research and its conclusions. It also seeks to contribute to debates about socio-legal research methods and their further development.

Reliability and validity of the data

Reliability and validity are key criteria which are often used to evaluate the quality of quantitative research in particular. Reliability assesses consistency in the data and hence whether the findings from the research can be replicated. Validity refers to whether the data really identify and measure what the research seeks to investigate (Bryman, 2001: 70, 270). These two key criteria require some adaptation for the evaluation of qualitative research. Both criteria reflect realist assumptions in so far as they expect research to reflect and replicate an objective social reality ‘out there’. Qualitative research, however, and discourse analysis in particular, challenge these realist assumptions, for they explicitly recognise that social actors and researchers themselves actively construct representations of social worlds. But the question whether particular data and data collection techniques have adequately captured the social world under investigation is still an issue in some accounts of qualitative research methods (see, for example, Hawkins, 2002: 449). Especially in the context of research which involves public bodies, such as regulatory authorities, the question whether documents and interview data include ‘presentational data’ is debated.

What is law in European Union integration?

This book discusses relationships between law and integration. It focuses on legal integration in the European Union. By integration I mean:

This definition recognises the interplay between various dimensions of integration. The shifting of loyalties, expectations and political activities towards a new EU centre also reveals a social aspect to EU integration. Political dynamics are analysed through reference to the building of new EU institutions (Wiener and Diez, 2004: 1). In discussing law and integration relationships this book focuses on the question: what is law in European Union (EU) integration? The book's emphasis is thus on analytical rather than normative issues. It departs from a current emphasis on normative concerns in EU integration studies, framed by lawyers as issues of control, accountability, transparency and legitimacy in the exercise of power in the EU (Armstrong and Shaw, 1998: 148; Wincott, 1995). While the empirical data discussed in this book shed light on these normative concerns, the book's main goal is to advance an understanding of the nature of law in EU integration processes. The book questions conceptualisations of law as formal, instrumental and relatively autonomous from its social contexts.

Introduction

While chapter 2 outlined key assumptions and elements of a traditional approach towards the role of law in EU integration, this chapter focuses on alternative critical perspectives. While there is no single unified critical perspective, some key elements of such an approach can be identified. Critical perspectives do not necessarily assume an integrative function of law. They also start to inquire into the nature of law in EU integration processes. They differ from conceptions of law as formal, instrumental and relatively autonomous state law. They abandon some of the modernist assumptions of the traditional approach and engage with post-modern ideas about the constructed nature of the social world.

This chapter argues that such critical approaches towards law and integration can be further developed. In particular, it is also necessary to explore law's relationship to its contexts, in order to understand to what extent we can really speak of a distinctly legal dimension of EU integration. Are there identifiable boundaries between law and its environments? Do we need to differentiate between macro- and micro-levels in order to answer this question? For instance, can law and its environments be linked on a micro-level? If so, how?

The first section of the chapter outlines key assumptions of certain contemporary critical approaches, while the second section discusses their main elements, in particular their questioning of the conception of law as instrumental, formal and relatively autonomous. The concluding section draws together the main points of the discussion.

Introduction

Chapters 2 and 3 analysed how law is conceptualised in the various contributions to the literature on EU integration. Chapter 2 identified a traditional approach which draws in particular on images of law generated by official supranational and national legal systems themselves. This perspective interprets law as formal, instrumental and relatively autonomous in relation to its social contexts. Chapter 3 examined critical perspectives which suggest that EU law has now assumed various forms. I argued that these critical perspectives abandon instrumental and relatively autonomous conceptions of law only to a limited extent. Even if the term ‘law’ is employed to refer to a variety of norms beyond official EU and member state law, law is still regarded as a clearly delimited domain with a specific normative content, although, in the case of soft law, this content is not formally legally binding.

This chapter further develops the discussion about the nature of EU law. It argues that implementation of the EU Directive on Integrated Pollution Prevention and Control in practice generates various types of EU law. It generates open and closed BAT norms. According to the IPPC Directive's key legal obligation operators of mainly industrial installations have to employ ‘the best available techniques’. Sometimes, there is a clear and specific definition of what the ‘best available techniques’ are, either for a whole industrial sector or for a specific installation. But at other times there is no specific, clear outcome to BAT determination processes.