I learned something useful when I was young in Brussels. What people think the law says may not be what it says.
When I was working on the adoption of the first WEEE Directive, a question came up on the meaning of “put on the market”. There were differences of opinion on what the term meant. It was not just an interesting legal point – a lot of money was a stake. Some in industry had one view, others in government had another view.
A wise Director in DG Environment recommend that I go and ask Dr.Ludwig Kramer. He read the pre-read the note I had sent that asked whose understanding was correct. He confirmed the industry’s view was correct and gave a clearer explanation of why this was the case. The matter was settled. It meant that how a lot of people understood a provision was wrong. The right law got applied. And upholding the rule of law is too important.
Just because some smart people think something is so, does not mean it is so. And, that is especially the case when it comes to even smart peoples’ understanding of what the law says, as compared to what they think the law says.
It is always useful to base your work on legal reality. You don’t want to go forward on the basis of core errors. The likelihood of making a serious mistake is too much.
It is strangely common. Basing your advocacy on a challenge against a delegated act, thinking that 5, rather 20 Member States is needed for a veto, is a too regular example. Hoping that an essential element of ordinary legislation can be overturned by way of secondary legislation – delegated act, implementing act, or RPS measure – rather than a targeted revision of the ordinary legislation, is also too regular.
Three things you can do to make sure you understand what the law really means
The evolution of a piece of law from the text that is published in the Official Journal and how it is implemented in practice will differ. Here are some things you can do to make sure you have a correct understanding of the law.
1. Legislative Record.
To make your recollection of the legislative compromises agreed to, it is useful to keep a detailed record of the legislative record of when the file goes through.
It is a useful document to put in front of officials and politicians if you sense they are trying to reverse, by sleight of hand, what was agreed to. But, this only works if you keep a detailed and objective record of the legislative history of the file. Such a legislative record can be used in any litigation you may need to take to confirm your understanding.
It involved tracking the explanatory memorandum, adopted amendments and their explanations , 4 column document, and debate, to help explain the final legislative compromise.
2. Keep a record.
You need to document your understanding and make sure that record can be found. If your organization’s depository of knowledge sits in the head, and not on paper, with one colleague, you are doomed.
Any one who claims to have perfect recall of the legislative settlement from 10 years ago is obviously a genius with perfect memory recall.
And, if they retire, or are not around when you need the answer a question, that amazing photographic memory is not available.
The only thing you can do is have a policy of documenting your understanding, and having it clarified by the Commission and Member States soon after the law is adopted.
I’ve developed a preference for getting one or two lawyers who are genuine experts in the specific filed, and who are respected by the Commission/Agencies, to provide an opinion on the meaning of the provision. This takes the emotion out. Either our understanding is right or wrong. If the Commission/Agency agrees with our understanding, we can go forward on firm foundations. The trick here is not predetermine their opinion. Ask a genuine legal expert in your field for their view. Check their track record for success changing the minds of the authorities or winning in the front of the European Courts. Beware of “sure thing win” lawyers and yes men.
3. Know when changes can happen
Changes tend to happen at some obvious moments:
1. The Commission may issue a Q&A document, with the backing of the Member States, that differs from your understanding. You need to input into this process.
2. When the Commission issue a clarification note on a European Court Judgement. A challenge in the European Court can lead to a much needed clarification. But, beware, you may discover that your understanding of the provisions is wrong. Again, you need to feed into the process of the preparation of the clarification note.
3. The Commission may turn a blind eye to a provision and ignore it. And, as long as Member States do the same thing, it is, as if, the matter never existed.
4. Of course, there is the possibility your understanding of what the law is, the legislative settlement agreed upon, is plain wrong. The level of misunderstanding seems to correlate directly to the level of opposition you have to the final legislative settlement. I bumped into someone who insisted a piece of law did something very silly. He seemed not know that I had worked taking that proposal through. I asked him to point out the offending provision. The offending text did not reveal itself. The issue could have been in the gold platting implementation of a member state or two, or, as I suspect, in his imagination. Amnesia, blackouts, and vivid imagination are plausible reasons why the misunderstanding occur. And, going out a limb, I know of more than a few cases were people claimed to their superiors that they won the issue as it went through the legislative machine, when in fact, they had lost.
5. Updates via secondary legislation – delegated acts, implementing acts, or for some us, still RPS Measures – can be used for tweaks, but as secondary legislation can’t be used to change essential elements or make policy/political changes to the enabling legislation, their use is limited.
6. The easiest way to get clarification is to go the European Court. If the Court rules in your favour, the law will be interpreted in your favour, or, iof necessaery, the law changed via a targeted ordinary legislative procedure to incoporate the Court’s judgement into the law. By way of example, see Case C-181/20 and the revision of the WEEE Directive.
The obvious risk is that the Court finds against you. That risk materializes a lot.