The EU law-making process - if the Habitats Directive is opened up for change

(part of the work in progess for Game on!)

• Currently the European Commission is engaged in a 'refit' process on the Habitats Directive.
• It is reviewing the effectiveness of the Directive in relation to economic and 'practical' criteria (effectiveness, efficiency, coherence, relevance and EU added value). This will include looking at the implementation of the Directive so far.
• The fact that the Commission is reviewing the Directive in this way does not mean there will definitely be a legislative proposal to amend the Directive. The Commission may decide that the Directive is in fact 'fit for purpose' and can stay as is.
• Currently, the Commission is engaged in a huge consultation exercise to gather information on the effectiveness of the Habitats Directive (via a number of consultants, including IEEP and involving Member States and 4 representative bodies for each Member State). The next important step in this process will be a 12 public consultation in April.
• In late September there will be a dedicated conference with stakeholders to discuss draft results of the evaluation.
• In early 2016, the Commission will officially report on the results of the fitness check. This will probably be when they decide on whether they think the Directive should be amended.
• If the Commission decides that there are reasons for amending the Habitats Directive, it will launch a public consultation with regard to the types of changes that should be made to the Directive and explain what kind of changes it may propose.
• After the public consultation it will publish a legislative proposal that then goes through the legislative process. See separate heading below and diagrammes here and here.

• The best opportunities for public involvement would appear to be when there are votes in the European Parliament or Council or important discussions/negotiations in the Council of Ministers where the common position is being discussed.
• There are also opportunities before, for example in at or around the stakeholder conference, with a view to influencing the Commission review, and, of course the April public consultation (but that's very early for our purposes).

We are trying to find out how often and exactly when it would be best to involve the public, and the kind of issues that would most easily get the public engaged.

• Council of Ministers/Member States:
  • National ministers and their staff (negotiators), and permanent representations: some will seek to protect the Habitats Directive and stop it from being opened up, e.g. Germany, others will want the opposite, e.g. Netherlands.
  • All may be susceptible to 'horse-trading' e.g. trading a provision they'd rather keep in the Habitats Directive for something they want more, say agricultural subsidy, and vice versa.
  • If there are elections in a Member State, Ministers may be more susceptible to lobbying, both by industry and by public.
  • Public pressure (as through FishFight) does make a difference, makes Ministers feel more accountable (immediately - possibly not so much over longer time frame).

• European Parliament
  • Most important person: rapporteur at Committee stage (i.e. rapporteur on the file in the Environment Committee): who this is will depend on which political party's turn it is to get the report and whose turn it is within the political party within the Committee. The positioning of the rapporteur is crucial: it can be influenced by party, as well as country of origin; therefore extremist right-wing or left-wing or anti-European rapporteur could be very bad news; Green or more centre politician from any party: better.
  • Members of the Environment Committee: can propose amendments, take part in the negotiations at Committee stage and vote. They are also influenced by party and country of origin (and sometimes constituency). It's important to identify the MEPs who are influential within their party or their country delegation, as this can influence final outcomes.
  • Other members of the European Parliament: vote in the plenary votes, can be important if they are in positions of influence in relation to Committee members, party or country delegations.

• European Commission:
  • Important in the review and proposal stages, and in trilogue proceedings;
  • Different levels important for different purposes: Commissioner (Vella). and his Cabinet (executive body) make decisions, but knowledge is with the technical staff; Commission staff are often influenced by their country of origin, so may be greener if from Sweden/Germany and less so from Poland/Spain; however, they are more bound by protocol and, except for highest level, not so influenced by the public; however, sometimes they are looking to protect the Commission's own power base, so don't want to let go of Commission responsibilities.

• Industry
  • Strong lobby against strong Habitats Directive, very few in favour: typical sectors opposed to the Directive and wanting to weaken it: construction, port development, car, infrastructure, farming: most of these have EU trade associations and very strong lobbies both in Brussels and nationally; most are strong on economics and have public affairs advisers and lawyers.

• NGOs
  • Many different NGOs, with different degrees of influence; some radical, some very business friendly, but at the moment a very large group of NGOs is uniting behind protecting the Habitats Directive. However, there is disagreement about the joint position NGOs should take: Should they say the Habitats Directive is perfect and therefore should not be amended (which would not be true, but a strong statement in favour of status quo), or should they admit that the Directive is not perfect and could benefit from improvement and strengthening in some aspects (thereby opening door for argument that the Directive should be opened up for amendment, which could be dangerous and undermine the Directive completely if changes made are to weaken it).
  • BirdLife and WWF are planning an online tool to help public respond to the public consultation in April.
  • With joint resources a wider public campaign should be possible.

see also diagrammes here and here.

1. The Commission publishes a proposal.
2. This is sent to the European Parliament and the Council of Ministers.
3. A lead (and several other) Committee(s), in this case the Environment Committee, in the European Parliament will start working on the proposal in the European Parliament under the leadership of a rapporteur. The rapporteur will publish a 'report' that will suggest a raft of amendments to the Commission's legislative proposal. The amendments will be those proposed by the rapporteur, but also by other MEPs in the Environment Committee (and often also compromise proposals agreed to by a group of MEPs across party lines).
4. This report is voted on in the Environment Committee and is then ready to be voted on in the plenary sitting of the European Parliament.
5. At the same time the Council of Ministers will be trying to negotiate a common position too.
6. If the Environment Committee's vote is very based on very strong majorities, it is possible that the European Parliament, the Council of Ministers and the European Commission start a process called 'trilogue'. This is an informal process outside of the formal legislative process in which the three institutions try to find an agreed text that they all support.
7. If the vote is not clear, there will not be a trilogue yet.
8. From the Committee vote, the Commission's proposal and the suggested amendments from the Environment Committee (and other Committee's, but less important; and some other amendments proposed by groups of MEPS, also less important) are voted on in the 1^st hearing in the European Parliament - in plenary sitting (i.e. of the whole Parliament).
9. If there has been agreement in trilogue, the agreed trilogue version is voted on in plenary, which is almost always voted through.
10. If there has been no trilogue, then it is likely to happen after this 1^st hearing.
11. The official legislative process continues too though, which consists of the Parliament's text being sent to the Council of Ministers, who can either accept it, or suggest changes or reject it.
12. If the Council suggests changes, then the instrument goes through a second reading in the European Parliament. Much of this will be happening in trilogue.
13. The rest of the 2^nd hearing process is much the same as the first time round.
14. If the European Parliament and the Council of Ministers cannot agree a text on 2^nd reading, then there is something called a conciliation procedure and a 3^rd reading. This does not happen very often.

Diagram above (from the above codecision report) contains Parliamentary information licensed under the Open Parliament Licence v1.0