How an EU law is made Content from the guide to life, the universe and everything

How an EU law is made

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Deep in the bowels of a Brussels bunker, a cackling sound rends the foetid air. A Eurocrat, his face almost totally removed by extortionately expensive plastic surgery has had an idea! Almost immediately it is carved into a granite plaque, before receiving the ceremonial rubber stamp from corrupt, drunken MEPs and cowering, timorous representatives of the Member States. All that remains is for it to be hoist to the surface by teams of ex-fishermen, and then over the whole of Europe can be heard the sounds of the honest working populace weeping, grinding their teeth and pulling out their hair in clumps as they behold the new LAW!

Well, sort of. Here's what really happens:

Something Should Be Done About That

These days, much of the EU legislative activity these days is revision of existing laws to keep up with technological progress. This is because the basic framework in areas where the EU has legal competence1 is now in place. However, in the past there used to be five main triggers for legislative action:

  • An 'incident'. So, for example after the Seveso factory in Italy exploded in 1974, spreading lethal dioxins over a fairly large area, there was a general agreement that this was not a good thing, and action should be taken to stop it happening again. Hence, the appearance of the Seveso Directive, setting standards on the handling of industrial installations that might go 'boom'.

  • An internal market problem. Member State A decides that lawnmower noise is a pain in the ears, and puts in place a national law setting maximum noise output at 40 decibel. Member State B also thinks there is a problem, but that 30 decibel is the absolute maximum for a warm sunday evening with the windows open. Member State C on the other hand, after some heavy lobbying from the strimmer people, sets their level at 50 decibel. This creates a problem for industry, as either they do three different models, or meet the strictest standards and risk being undercut by less scrupulous rivals, or they can't sell throughout the EU - they can't benefit from what is called the 'internal market'. So the Commission puts forward a proposal at 40 decibel, and a compromise is found.2

  • Scientific research At the end of the day, the EU takes action on issues such as climate change because scientists identify a problem, a consensus develops that action should be taken, and the problem then hits the political arena.

  • An international treaty needs implementing.The EU and its Member States often negotiate various treaties with the rest of the world. So, if the world comes to an agreement on not killing a particular type of fluffy animal, for example, this then needs to be transposed into national and where applicable, EU law.

  • Lobbying by one or more Member States or stakeholders. Occasionally, one Member State or an important lobby (a branch of industry or the trade unions, or an NGO...) may think that the EU should act on something. If they make enough noise, and they can construct a case, then this might convince the Commission to come forward with a proposal.

Fred Frozen, intrepid Arctic scientist, keeps finding polar bears stretched out on the ice. What could be going on? He takes some samples and finds unusually high levels of chemical X in the stiff bears - is chemical X doing them in? Fred writes a research paper. Intrigued by this, Ida the Inuit doctor tests some of her clients - they've got high levels of chemical X too - yikes! Fred, Ida and Graham the Green lobbyist hold a big conference in Brussels - explaining the problem with the aid of a stuffed bear - something must be done!

Let's Write a Paper

Once a problem has been identified, there is generally a period of consultation and discussion, as the various players argue around whether a law or other action is needed and what it might contain. This could take a very long time. In some cases, there could be green papers3 and/or white papers4 before any form of action is seen, or an action plan, or a thematic strategy. In general terms, the tendency is to plan legislative action a long time in advance, so that there is an opportunity to debate the form and content of that action, as well as whether it is a good idea or not.

As things become more concrete, the Commission will usually:

  • Ask some independent experts to conduct studies. How much will it cost? What could be the effect? Who is concerned?

  • Hold stakeholder conferences, Internet consultations, discussions with those that might be affected.

  • Produce a policy paper, which the European Parliament and Council, as well as the world at large (if interested) can give a view on.

  • Look at alternative solutions, such as voluntary agreements with business, economic instruments5 or non-binding action. Notably, they are obliged to assess whether the EU level is the best place to solve the problem, or whether it could be left to the national or local level. This is part of the doctrine of subsidiarity6.

Eddie from DG Environment works on chemical policy. Concerned by the plight of bears and Inuits, and worried that chemical X might be working its way into the bloodstreams of law abiding EU citizens, he starts some research off. He also has a meeting with Colin the chemical industry lobbyist, who informs him that chemical X is vital for the EU economy, and that in any case chemical X is no more harmful for the average human being than a glass of milk, and that in any case there are still plenty of polar bears on Spitsbergen. Nevertheless, Eddie convinces his boss to launch a stakeholder consultation on chemical X.

A Law is Born

In the EU legislative process, the Commission has the right of initiative. This means that they are the only ones that can propose a law. However, before something comes out of the Commission, as well as the consultations and research mentioned above, there are internal checks and balances.

EU laws are first worked upon by the specialists in that area. So if it is a law tightening air quality standards, the people responsible for doing the ground work will be environmental scientists, engineers and lawyers and economists that specialise in that field, all working in the bit of the Commission that deals with the environment. When the Commissioner who deals with that area of work is happy, he or she gives it the go-ahead for the first formal process, which is called 'Inter-service consultation'. This is an internal negotiation within the Commission.

In addition, all Commission legal proposals now come with an impact assessment attached. This is a document that tries to assess what will be the effect on the economy, jobs, social impacts and the environment of the measure being put forward. Obviously, it is normally broadly positive, otherwise the proposal gets binned before going anywhere.

All legislative proposals have to be translated into the 21 official languages. For your average document, this takes about 5 weeks. At each stage, the amendments also have to be translated, as of course does the final document. At the nearly final stage, clever lawyers who also speak lots of languages check that the text means the same in all the languages. This is not easy to achieve.

More yikes - the results are back from the studies and the consultations and it seems that Chemical X might thin your blood - it is being discharged into the ocean in relatively small quantities, but is being absorbed by the fish. The seals eat the fish, the polar bears eat the seals, QFD. But hang on, we eat fish too... Alarmed by this, Eddie is given the go-ahead for action - he drafts a Directive with an immediate ban for chemical X, before we all end up as stiff as the bears. However, Colin has been busy too - he knows whats afoot, and he's been briefing the pinstripe wearing capitalist pigdogs in DG Enterprise - they water down the document in Inter-service consultation, adding a review clause here and a delay here. Still Eddie gets his proposal through and adopted by the Commission.

The Committee of the Regions and the Economic and Social Committee Give Their Opinion

Which is promptly ignored. Although the Committee of the Regions should fulfil the valuable objective of keeping the EU more in touch with its regions, these organisations are now putting in place their own direct lobbying structures, and it is therefore doubtful whether the Committee of the Regions serves any purpose. As for the Economic and Social Committee, which represents the social partners (business, trade unions and 'others') nobody can remember what the point of having this body is. Both of these committees are widely considered as out of date and largely inept. On occasions they have been implicated in a little low level corruption. All this means that when they speak, the people that matter in Brussels and elsewhere cease to listen.

The European Parliament Vote on It

These people didn't use to matter much, and on foreign and defence policy issues, they still don't have much of a say. But on the bread and butter issues of the EU they are now significant players in the system. This is good news, as your MEP is of course your direct representative in the EU.

The Parliament first appoints a Rapporteur. This is the MEP who will write the view of the Parliament, assuming that they agree with what he has to say. He or she meets with the Commission and normally the key interest groups, and comes up with some draft amendments.

These are then looked at by one or more committees. If the proposal is about working hours, the employment committee would lead, with the industry committee taking a keen interest, for example.

Finally the amended amendments go to the Plenary, all the MEPs sitting in one big room. MEPs often vote on political grounds7, so crunch amendments will depend on how many political groupings are in favour or against.

Martina the MEP is named Rapporteur for the proposal. She is aware that polar bears are seen as cute and furry by her constituents (who are a safe distance away from meeting one) but at the same time there a number of chemical industries in her constituency. Colin meets her and tells her that if she takes a strong line lots of people will be sacked in her home town. Graham meets her and suggests that she doesn't want to go down in history as 'Martina the mass polar bear murderer'. Weighing this up she suggests compromise amendments whereby chemical X can be used until 2016 but must then be phased out - she figures that by then she'll be retired in any case. She gets the support of enough MEPs in environment committee and plenary, and the amendments go forward.

... And Then by the Council of Ministers

The Council of Ministers does what it says on the tin. At its highest level, the Ministers of the 25 Member States sit around a table and haggle over the draft law. Of course it's not Ministers all the time - they wouldn't have any energy left for national issues or important lunches. In fact the Council sits at three levels, from top to bottom:

  • The Council itself with the appropriate Ministers and bells and whistles(often given the name of its subject matter so - Competitiveness Council, Environment Council etc.)

  • The Committee of Permanent Representatives (the Ambassador or the Deputy Ambassador, depending on the subject8).

  • The Council Working Group for the specialised area (the diplomat from the Member State civil service, generally based temporarily in Brussels, plus one or two relevant experts from the capital).

  • These meetings are chaired by the Presidency. This is the Member State that chairs meetings and controls the agenda of the EU for a six month period. They are not supposed to use this advantage to put forward their national interests - some respect this more than others.

    Also seated at the table is the Council Secretariat, who take notes and help the Presidency, the Council Legal Service who give neutral9 legal advice, and the Commission, who defend their proposal.

    Obviously enough, the theory is that the technical, nitty-gritty points should be dealt with at the lowest level, leaving the Ministers to argue over the politics and clinch a deal.

Michelle the Minister and her colleagues don't fancy a ban. Bans aren't sexy. Instead they propose a system of tradable permits for the emission of Chemical X, with the number of permits decreasing over time. This should make the production of Chemical X more expensive, and eventually lead to more use of Chemical Y, which is cleaner but not as cheap. They reject most of Martina's amendments, and modify Eddie's proposal along the lines of their scheme.

Into the Second Reading

Ideally, by now the less important aspects will have been sorted out. The crunch issues are looked at again, with a second round of amendments by both sides. Importantly, the Commission gives its opinion on the first round of amendments before hand, which can often sway things one way or another.

Maybe a Spot of Inter-Institutional Negotiation?

This is called the conciliation process. Senior diplomats, or the relevant Ministers from the Member States are faced by a number of heavyweights from the European Parliament. Normally, they will put out a Vice-President specialised in this rather particular form of negotiation, the Rapporteur, and some senior members of the various political parties and the relevant committee.

The two sides argue the toss over what is now hopefully a small number of conflicting issues, until they come to an agreement or the time runs out. The Commission is virtually reduced to a bystander at this stage, as although they can and will intervene to make points, they don't have a veto on the final agreement.

Martina and some colleagues are sat on one side of the table. Michelle and the other Ministers are sat on the other. Eddie's boss, the Commissioner is sat on one end, trying to make helpful suggestions. Graham is in a bear suit outside the entrance to the building. Colin has made his phone calls. Round about 3AM, all sides are so sick of the whole thing that they come to a compromise - the trading scheme will run to 2018 at which point the ban will kick in.

Everybody Happy?

If there is no agreement in conciliation, the proposal falls and everyone goes back to square one. Either the Commission tries again, or it gives the whole thing up as a bad job.

Member States Implement

Most EU laws are called Directives. These set down the basic rules on how the EU will handle safety standards for medical equipment, but allow the Member States considerable flexibility on how the nitty-gritty will operate. This is another manifestation of the doctrine of subsidiarity. Occasionally, the EU uses Regulations, which must be implemented more or less word for word, or Recommendations, which as you would expect are non-binding10.

Michelle goes back home and forgets about the whole thing. A few months later, someone in her department starts drafting national secondary legislation to bring the plan into effect. There are a few grey areas, which they try and work out as best they can, and a few bits that don't work with the national system, which they skate over and hope Eddie doesn't notice. Inevitably, Colin has found a whole bunch of national industry that have only just woken up - they raise a hue and cry, and try and have things watered down at the margins.

Evaluate, Assess and Maybe Revise

Obviously, just having the law on paper is not enough. It needs applying on the ground. Nor is the law a static system - in a few years time, technology moves on, problems are raised.

In a few years time Eddie11 will check the implementation of the Directive. His lawyer friends at the Commission will launch legal proceedings against laggards and those who have blatantly not respected the wording of the Directive. He'll also look at the current state of play with the science, examine industrial problems with the phase out - maybe he and his colleagues conclude that the law needs revising - if so it's back on the merry go round for another turn.
1In short: trade, environment, agriculture, health and safety, technical standards and financial market issues.2It's rarely that simple of course...3Communications designed to spark a debate4Communications designed to set out the way forward5Taxes, tradable permits and so on.6In a nutshell, doing things at the most local level possible.7Although national interests also play a role8The Ambassador, also known as the Permanent Representative to the European Union, sits in COREPER I, dealing with high politics and diplomacy. His or her deputy sits in COREPER II, dirtying his or her hands with Internal Market issues, social stuff, the environment and so on.9ish10And often not worth the paper they are written on.11Actually, it's more likely to be his colleague Emma - Commission staff move posts every 3-5 years.

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