One of the greatest professional challenges any lobbyist will face is to stop a piece of secondary legislation being adopted.
If the European Commission has tabled a piece of secondary legislation you oppose your chances of getting the European Parliament or Council to block it are slim.
Your chances are slim. The best thing you can ever do is invest your time and resources up front and get the Commission to table the proposal you want. If they don’t, you are going to be playing catch up.
NGOs stand a better chance of getting the European Parliament to take up the challenge. They focus on a few sensitive issues, such as GMOs, chemicals, pesticides or children’s health.
Every time I have faced this challenge I have resorted to my trusty comitology bible from PACT, process charts and guidebooks.
Case Studies
I have written some more detailed post on specific challenges:
Environment Committee’s challenges
Having dealt with many of these cases, you’ll find Member States reluctant to take up the issue. Officials will tell you that even if they could persuade the Minister to take up the issue, they are not going to supplant their judgment over that of any independent scientific expert.
I am not saying it is a theoretical possibility, but I am saying that your chances are at best remote.
It is important to remind your client how difficult this will be. This is not a time for false hopes.
Veto or disapproval
If the measure you are contesting is an implementing measure, MEPs and the Council can voice disapproval. They can’t block it.
If the measure is a delegated act or RPS, the European Parliament can block it.
Voting
The system makes it very hard for the Commission’s proposal to be blocked.
For the European Parliament, you need 376 votes or more to stop it. Getting an absolute majority of members to vote in support of one issue is never easy.
For the Council, you’ll need a Qualified Majority against the Commission’s proposal. Not impossible, but it is rare.
So, the basic learning is to make sure the Commission put’s the right proposal out the door.
To be fair, you really need to be focused on the design of the original legislation. If it says you can’t get an exemption for the reason you want an exemption, your cause is lost before you have even begun. It’s just too late.
Jump over hurdles
You are going to have to jump over some very high procedural hurdles.
In the European Parliament, you are going to have to:
- Find someone to support you
- Get it past the lead Committee, and if passed
- Get 376 votes in support of the challenge – see this piece on Canadian Oil Sands challenge
What arguments work
In my 20 odd years, I have noticed some trends on why secondary legislation gets blocked.
- A substantive error of law
- Procedural errors
- Ignored something obvious that should have been taken into account
Most of the successful challenges are around public health issues.
Politics does not work
I am sure that one day, the European Parliament or Council will intervene for other reasons.
I don’t think that there will be enough Member States or MEPs who will start second guessing regulatory scientists.
There are many MEPs and Member States who will intervene for NGOs or industry to support their cause.
That is is not in doubt. Politics will always step in.
What is more important is whether there will be an absolute majority of MEPs and a Qualified Majority of Member States for you – that threshold is very high.
The high number of the hurdle of political reality you can’t ignore.
If all else fails – goes to Court
If you can’t get enough votes to block, you can always see if the Court (see Denmark v Commission) will step in..