Legislators don’t have perfect knowledge.
From time to time, events will transpire that deserve adjusting the application of a well-intentioned implementation measure.
The original legislative intent would not be served by adopting the measure. Or, adopting the measure would harm the reputation of the EU or the law. This will preserve the integrity of the legislation without bringing it into public ridicule.
How to Spot a Pressure Valve
Some legislation has a pressure valve built in, and others do not. It is easy to spot.
The law will say the Commission “may” or “shall” adopt, or provide for grounds for the Commission to derogate.
Example
By way of example, years ago, I worked in the Commission implementing a Directive. The Directive had a “derogation’ provision that specified some clear criteria that allowed a derogation to be granted.
I got a lot of submissions asking for a derogation that were not based on one of the specified criteria. I usually phoned the person up, suggesting that they may have made a mistake by not basing their request on one of the specified criteria. Some recalled their original submission and resubmitted, and others did not. Those who based their request on the non-specified were always rejected by the Member State Committee. Those who based their request on one of the given criteria, with evidence to support their case, got their derogation.
Yet, a few years later, the Commission decided to grant a derogation that was not provided for in the Directive. The matter went to the European Court of Justice. The Court ruled against the Commission. And, for many years after that, the European Parliament and the several Member States did not trust the Commission when it came to derogations.
Why mot provided for
The absence of “pressure valves” often comes from a lack of trust by the European Parliament, the Member States, or both, in how the Commission will exercise that fail-safe option.
The conditions for use
It should be used sparingly.
And, those calling for it must not be tainted with ‘cry wolf’ syndrome, and base their case to invoke on robust data and evidence.
It can be invoked if the Parties trust each other.
The Commission has a challenge with implementing acts. If the measure is supported by the Member States, the Commission has no discretion in not adopting it. Their hands are tied.
What can you do
If you face one of those measures:
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Have the evidence
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Have the legislative history to hand
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Know the real decision makers
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Be trusted by them
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Flag it to them well in advance, not like a few weeks beforehand.
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Avoid the situation coming about in the first place, e.g. provide the correct data and evidence at the right time. If the exercise of the fail-safe mechanism requires data and evidence, provide it.