Provisional Draft
I have had the good fortune to advise NGOs and industry as a lobbyist. I have often been asked what can be done when the Commission is about to make a proposal that is against their interests.
2 Minutes to Midnight
I am often asked this question just before, and usually just after, the Commission has made the proposal.
If you really want to change the Commission’s long term thinking you need to change their thinking. That takes a long term perspective and feeding in fresh thinking and solutions at the Brussels and Member State level. I have found it the surest way of brining about positive proposals from the Commission. But, perhaps because it takes a few years before you can measure your success, most organisations, NGOs and companies do not go down this path.
Delegated legislation
I am most interested in what happens if the Commission is going to table a piece of delegated legislation that is against your interests.
The truth is that if the Commission are about to, or have just tabled tabled, a proposal for delegated legislation that is against your interests, you are in a bad place. The Commission usually get what they want, and the chances of changing their mind or having their proposal blocked are slim.
Whilst the chances to block the Commission are slim, they are not impossible, and I’ll share some thoughts on securing what you may want.
The odds that the European Parliament or Member States will step in and block the Commission’s delegated legislation proposal are less than 1%. For ordinary legislation, the Commission have a tougher ride, and whilst only a few ordinary legislative proposals fall, important elements of their original legislative package can be altered.
First, read this
Usually, I’d advise two immediate steps:
First, you should read Daniel Guegen & Vicky Marissen’s Handbook on EU secondary legislation. You should aslso read Guegen’s excellent book “The Orphacol Saga” (available here).
If after reading that, you are not in despair about what you need to reverse things, and you are serious enough to realise that just praying that things will change (they may, but don’t usually don’t) you may find some helpful suggestions below.
A Warning
What I recommend is not for the feint hearted. It requires speaking to a lot of people, usually early on the the process, to secure the changes you want. The toughest part is that what is important for you is usually not that important important to the European officials, national civil servants and politicians you will need to support you. What drives them to act will usually be factors separate than your own. You will need to change your story and case to most resonate with the people you are speaking with.
Step 1 Inter- Service Consultation
Please see my earlier blog on influencing Inter-Service Consultation here.
The greatest challenge for most organisations, NGOs and trade associations is twofold.
First, having an agreed position which they can speedily deploy. Inter-Service Consultation will last 2 /3 weeks, 3 or 48 hours. Many organisations have a hard time getting internal sign off that quickly.
Second, the people dealing with the adoption of the proposal are 4 groups of people: 1. Commission officials, 2. Cabinet leads on the file, 3. Heads of Cabinet, and 4. Commissioners. Given this audience it is remarkable how often organisations deploy long (more than 2 pages) technical briefings. I have found it helpful to appeal to their professional background, which is usually generalists, lawyers, or political players, and speak to those points. On the occasions the issue is scientific or technical making the issue make sense to a normal person rather than an scientific/technical expert is key. It is remarkable how often people want to display their intricate knowledge of their doctoral thesis, usually in a field which makes quantum physics seem simple, and loose the Cabinet lead. It is always useful to remember that this is all about persuading people to take up your position /agenda and not to loose them.
Third, sometimes proposals may have advanced to the final adoption phase without going through the internal procedures. I have seen proposals that were about to be adopted that had not gone through inter-service consultation or been validated by the 1st Vice President. If you find a procedural anomaly, it is worth highlighting that at the very start. Good civil servants never like procedures being ignored or broken.
Step 2 – After the proposal is put forward
If the Commission table a piece of delegated legislation you do not support you are now climbing up a very steep hill.
You will need to work with the European Parliament, or the Member States, or both, to block the Commission’s proposal.
The European Parliament are more active at blocking Commission proposals compared to the Member States.
In the last European Parliament EP), the EP blocked 4 Regulatory Procedure with Scrutiny proposals, and 1 Delegated Act. The EP have not been able to force the Commission to withdraw an Implementing Act proposal.
The Council have more reticence in challenging the Commission’s proposal.
I will later edit this blog and add examples where the Council have intervened to block a Commission’s delegated measure.
The first question you need to ask is: What process is the delegated legislative proposal being adopted under. Is it:
- A Delegated Act
- An Implementing Act
- Regulatory Procedure with Scrutiny
I’ll explore each option below.
These charts are broad brush maps. They provide you with an idea of the journey, but the actual maps will be specific for each case, and far more granular. These maps for example do not detail the mechanics of how a European Parliament Committees or Council Working Working challenge a delegated measure.
Overview
Below is a summary for how the EP and the Member States can intervene and the impact of their intervention.
Overview of the EP
Overview of the Member States
To be added
Better Law Making Agreement
As I have written before (see here), the Better Making Agreement has established important changes to how the Commission adopt delegated legislation. This secretive law making process will be opened up from 1st July 2016.
Please see a process chart below indicating some of those changes.
Process in Charts and Case Studies
You will find below process charts for all three processes.
I have written before on how the European Parliament has exercised their right of scrutiny for delegated legislation (see here). The European Parliament appear to be most diligent in exercising their right of scrutiny in 2016.
I will also supplement this with case studies of when Member States have successfully challenged the Commission.
RPS
Case Study Insert by MS
Delegated Act
Process chart
See Case Study by MS.
Implementing Act
Case Study by Member State.
What if No Opinion
The challenge comes if the Standing Committee can not secure a Qualified Majority Vote for or against the draft implementing act. Sometimes, in particular on sensitive issues, like GMOs or pesticides, there is a ‘No-Opinion’ result.
It is clear that the Commission consider that they have a considerable margin of discretion for the Commission on what to do if there is a ‘no opinion’ or a ‘negative opinion’.
It is important to realise that going to the Appeal Committee should be seen as an exception to the general rule. Indeed, there is no obligation on the Commission to go to the Appeal Committee. Instead, the Commission will prefer to submit an amended proposal to the Standing Committee than proceed to the Appeal Committee.
There does not appear to be a time limit on how long the Commission can find a draft that is acceptable to the committee. But, if the Commission go to the Appeal Committee and they reach no agreement in two months, no opinion is deemed to be agreed.
Ordinary Legislation
You’ll see that if the Commission is blocked it can either re-table an amended proposal or bring forward an ordinary legislative proposal.
Many people seem to fear the latter option. But, sometimes it is the only way to remedy the situation. If the original legislation has, in your view, built in defects, the only way to remedy those defects is to get the Commmission to acknowledge this and for them to table an ordinary legislative proposal.
If the Commission don’t want to re-open the original law, you can force them to the table if the EP or Council block their proposed measure.
It is important to note that delegated legislation is singularly curtailed in the changes it can make. It can not be used to remedy “essential elements” of the parent legislation. The only way to remedy built in defects in the parent legislation is through a new piece of legislation introduced by way of the ordinary legislative process.
European Court of Justice
Even if the Commission gets their delegated proposal adopted, there is the possibility that a Member State (or Norway), the European Parliament, or the Council could go to European Court of Justice to quash the adopted measure.
This has happened. In Case 14/06, the Commission granted an exemption for Deca-BDE under the RoHS Directive. Denmark and others challenged the granting of the exemption. The European Court ruled that “it is sufficient to state that the contested decision, which is equivalent to a general exemption for the use of DecaBDE in electrical and electronic equipment, was adopted when the conditions laid down by the Community legislature in Article 5(1) of Directive 2002/95 had not been met and runs counter to the objective pursued by that legislature of establishing the principle of the prohibition of the components referred to in that directive.” The exemption was revoked.
This is a final option when all other pathways have been closed.