For a long time, I looked at preparing advocacy in the following sequence:
- ID a clear desired outcome
- Find the Evidence to support the asks for 1
- ID if it is Politically Feasible
- ID if it is Legally Feasible
Let’s look at those four steps in a little more detail.
Step 1: ID a clear desired outcome.
Are you clear about what you want? Do you have a clear ask to support policy/legislative change (or inertia)? Is it clear that what you have asked for will lead to what you want?
Are your members/supporters/colleagues aligned on what you are asking for and why? Are people going to spring up unexpectedly in meetings with decision-makers and say that this is not what they want, they want something else?
There is no point floundering around with unclear asks. If you ID one core objective, deliver it, and just before trilogue talks start, say your key issue has always been something new, you look at best foolish, or suffering amnesia.
If you are good for this, you can proceed.
Step 2: Find the Evidence to support the asks for 1
It is essential you have credible evidence to support what you want (including inertia/status quo).
If you go in blind with nothing to support your position, you are entering a dangerous place. Unless you are seen in the living saint’s category of interests (of which there are few), decision-makers, including your allies, are not going to believe you because you say it so.
This step foils many in Brussels. Instead, they resort to loudly reciting their very own version of the Catechism in Latin, thinking that the listener is a fellow believer. They are often shocked when they discover they are dealing with a non-believer who can’t understand a word of Latin.
If you have credible and objective data, you can go to 3.
Step 3: ID if it is Politically Feasible
If you want a policy in law (or not), you’ll need to get enough votes in the EP or the Council to make it so. The laws of political reality are harsh. If you don’t have the votes, you won’t get what you want.
If you want to get a good idea if you have the votes, I’d recommend using services like https://eumatrix.eu/.
If your idea of getting enough votes for a winning coalition is to have the sole backing of Hingary in the Council and the ID in the EP, you are going to have a painful encounter with political reality soon enough.
If you have the votes, you can go to what I thought was final step.
Step 4: ID if it is Legally Feasible
Just because you have something that is clear, backed by technical evidence, and supported by the Commission, Council, and the EP is not enough.
I’ve always recommended using a good lawyer early on to see if what you want is legal.
What you want must be legal. You may get what you want but find yourself blocked at the altar of the ECJ. If the EP, Council, Member States or individual with standing challenges what you wanted, and that got in the OJ, and you fall at the last hurdle, all your hard work will be for nothing.
So, I think it makes sense to run the legal feasibility test at the same time as step 3. You are going to need to find a good lawyer – the one who is going to tell you that you have the equivalent of spinach in your teeth – and get them to give you an honest review.
By a good lawyer, I mean one who is an expert in the area you are looking at, is respected by all Commission’s Legal Services and ideally all the EU Institutions, and has a track record of success in front of the European Courts. That’s a rare group.
If what you want is not legally feasible, you have three options. First, you can start again. Second, you can find a workaround alternative. Third, you can hope and pray nobody identifies the legal weakness and decides not to challenge any law with the offending provision.