A novel approach for dealing with Commission proposals

If you disagree with a Commission proposal, there are three things you can do.

If you don’t think what they are doing is right, you can show their case does not exist. All you need to do is simple, and show the case for action is not true.

And, please remember a Commission Communication,  and the political instructions therein, is not evidence that the Commission can use to adopt a legislative proposal.

Pathway 1

You can complain about their ideas, say it is too weak/too strong, and make your views stridently known during the public consultation for the roadmap, impact assessment,  media, social media, and in bilateral meetings with the Commission Services, MEPs and Member State officials.

You bring little to no evidence to the table to support your case and hope that rhetorical flourishes and stalker-like Twitter/Linkedin ads will win the day.

You’ll likely spend 50 times more time preparing your response compared to the amount of time you spend face to face with the officials drafting the proposal.  The ratio is likely 1000 to 1.

 

Pathway 2

There is an alternative way.

You can show by data, evidence, studies, and anecdotal evidence that the Commission’s case for action is not established.

If your submission is strong enough, it is likely that the RSB will read the submission, and reject the draft Impact Assessment for not supporting the case for action.

If the case for action is not there, all you need to do is produce the evidence to show clearly and unequivocally that the case for action does not exist.

All you have to do is have a look at the legal basis for the proposal and see if the case for action is there:

• If it is an environmental measure, show there is no environmental or public health issue.
• If the measure is about workers’ health, just provide a watertight case and real evidence that there is no harm for workers in Europe.
• If the measure is based on the internal market, show that there is no European internal market issue at state.
• If the issue of public policy concern is limited to one or a very few countries and is not an EU issue, the case for action is not there. Other measures can be taken that are more effective.
• If voluntary, non-regulatory measures, are being taken that resolve the issue of concern, then the case for EU action is gone.
• If the measure threatens global trade,  and you can show that real-world harm to Europe is going to happen, the case for action is reduced.
• And, even if there is some real-world evidence, you’ll show that the action is disproportional.This is a more effective tactic that’s used by surprisingly very few.

Pathway 2 requires that you step in early to the policy cycle and bring real evidence/facts to the table, rather than broad brush lines you recite as matters of faith in endless internal meetings.

This approach is hard work. You need to bring real experts to the table to work hard to develop a watertight case, full of rich evidence, that supports your case. This is not an easy endeavour.  You’ll need to be honest and acknowledge your weak spots in your submission, and any submission without weak spots is likely riddled with errors. You’ll acknowledge other plausible explanations that don’t reflect your worldview, and politely, and with evidence, show slowly but clearly why your position stacks up.  This is an incredibly heavy lift of expertise and resources, often in a short period of time.

Pathway 2- Why is it an exception to the rule 

The second path is rare in Brussels. This may be for many reasons.

Firstly, the obvious is that preparing and submitting watertight, high-quality evidence in the public domain is too much hard work.  Internal drafting meetings are a lot more fun.

Yet, as hardly any issue is that new, it gives you a few years to get the evidence ready to prove your case. John W. Kingdon recommends having your case filed away for the day your issue appears on the policy cycle.

Secondly, you may not want to spend the time and resources/money getting the evidence in one place. If that’s the case, you have nobody, other than yourself, to blame for any proposal that comes out the door that you don’t like.

Thirdly, and this can’t be ignored, you choose not to bring the evidence to the table to disprove the Commission’s thinking because that evidence does not exist. The case for action exists.

Pathway 3

There is a third way. You can make the case for a preferred course of action way ahead of time. You frame the policy debate.

I’ve always found it the most effective way forward. I’ve used it a few times. It involves a long term time perspective (2-5 years). It involves getting the world’s top experts to work on the issue and develop a powerful and evidence filled case for your preferred option. I’ve found it useful to share the outcomes with the Commission, and if they co-opt the findings and evidence as their own, so much the better.

There is one problem with this pathway. If the evidence from the world’s leading experts does not support your preferred option, they won’t write down your preferred way forward, and you won’t have the case you wanted to present.

It does require that you step in early to the policy cycle and bring real evidence/facts to the table, rather than broad brush lines you’d expel in an internal meeting or down Kitty O’Sheas. I think it is, for this reason, it will never catch on.