However good a lobbyist you are, you are going to lose. Sometimes, you won’t be able to persuade officials and politicians to back your case. Your client’s case may be politically hopeless, or your political opponents too strong. You need to be able to cope with loss. It’s part of your work.
Even when you face political realise that not all is lost. You can still go to the European Court to squash the decision or law.
I’ve gone down this path. It works. It is not quick but it can be very effective.
Directives can be declared invalid (see Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and Others (link)) and delegated acts (see Case T-521/14 Sweden v Commission (link)), implementing acts ((Case T-837/16, Sweden v. Commission (link), and RPS measures ( European Parliament (C-14/06) and Kingdom of Denmark (C-295/06) v Commission of the European Communities (link)) have all been successfully challenged.
Partnership agreements (See Case T-180/14, Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (Polisario Front) v. Council of the European Union) and letters from Agencies ((Case T–283/15, Esso Raffinage v ECHA, (Link) have been struck down.
After all, the European Union is based on the rule of law (Article 2 of the Treaty). The European Union can’t do whatever it wants, however unpopular your cause or client.
As a lawyer whose opinion I value highly puts it, “the law is not a penultimate shot but that the legal considerations should be integrated from the outset to supplement the other arguments and help generate the paper trail which you might need if legal options prove necessary. In other words, use the same argument you would use in Court, hoping that deploying them early enough may avoid the need to ever have your day in Court.” This is wise counsel. I always like to bring a smart and objective lawyer from day 1.
If you are going to start talking about challenging a law or decision, I’d recommend that you are serious. Don’t bluff. Threatening legal action, and not following through, is too common.
It’s nearly as worthless a slogan as “if you do this, I will close my operations in Europe, and take them outside Europe”. Over 20 plus years, I don’t know any time that line has worked.
If you are serious, it is useful to present the legal case before a decision is finalized. Ask your lawyers to go and present it to the Commission, MEPs, or the Member States. I know of one case when a sober analysis presented at the very last moment led to the co-legislatures to re-consider.
If your lawyer says your chances of success are a “sure thing”, be very circumspect. Only the oldest profession offers you a sure thing, and you pay for it.
It is useful to ask for more than one opinion.
It’s not going to be cheap (150K plus) and it takes a few years to get a judgment (2 years).
Yet, even if you the co-legislators of Agencies act against you, you can still go to lady justice for relief.