UK: The European Union – An Overview
Part 2 of 2

Types of Legislation
EU legislation consists of primary legislation, that is, the Treaties signed directly by and between the Member States, and secondary legislation, which must fall within the competence of one of the Treaties. The Treaties (notably the EC Treaty (Treaty of Rome), the Single European Act, the Treaty on European Union (Maastricht Treaty), Amsterdam Treaty and the Nice Treaty) override national legislation. Secondary legislation consists mainly of regulations, directives and decisions. Secondary legislation can be challenged on the grounds that it is ultra vires, e.g. that it exceeds the scope of the relevant Treaty. It can also be challenged if the correct procedure as laid down in the Treaty is not followed. Secondary legislation must follow the principle of "subsidiarity", i.e. measures must only be taken at EU level where their objectives cannot be sufficiently achieved at Member State level.

If there is a conflict between a Treaty provision (or legislation made under the authority of a Treaty, such as regulations and directives) and national legislation, the former takes priority. This principle of the supremacy of EU law applies to both legislation and judge-made law. In practice, the principle can impose significant constraints on the laws which can be enacted by a national legislature.

Regulations
A regulation of the Council, or a joint Council and Parliament regulation, has direct and general application in the Member States. If there is any conflict with national laws then regulations will prevail. The Commission also has the right to issue Commission regulations on subjects which fall under its administrative functions. These are limited to certain specific sectors, such as the administration of the common agricultural policy, competition and State aid rules, international trade issues, such as anti-dumping cases, and in the financial services sector as implementing measures under comitology.

Following the coming into force of the Constitutional Treaty, regulations will become known as "European Union laws".

Directives
Directives are the most common form of European legislation but unlike regulations, they are not directly applicable in the Member States. Instead they are binding as to the result to be achieved, but leave to the Member States' authorities the choice of form and method. A deadline is set for implementation of a directive's provisions into national legislation (if appropriate legislation is not already in place). It is usually eighteen months from publication in the Official Journal. Member States thus have some discretion as to the method and timing of implementation and, to the extent permitted by the wording of the directive, as to the substance. Directives are the preferred means by which harmonisation of legislation throughout the EU and regulation of trade and industry is brought about. It is the Commission's role to ensure that Member States implement directives correctly and on time and it regularly brings proceedings in the ECJ against Member States for failure to implement EU directives.

If a directive has not been fully implemented in a Member State or not implemented within the prescribed time limit, it may have "direct effect". This means that it can be enforced against state bodies and certain other bodies linked to the state in the national courts of the Member States if it is precise as to the rights granted, unconditional, and the date for implementation has passed. If there is conflict between the implementing legislation and the EU directive, the national legislation is subordinate to the EU legislation, both in word and in spirit.

Following the coming into force of the Constitutional Treaty, directives will become known as "European Union framework laws".

Decisions
Decisions are issued by the Council and the Commission. They address specific issues and may be addressed to Member States, companies or individuals. They are binding upon those to whom they are addressed. They are normally used for the administrative implementation of EU law. Examples include decisions on commercial agreements to which the competition rules apply or on large mergers which fall under the Merger Control Regulation.

Recommendations and Opinions
These are not binding but are useful indications of current policy and future legislation.

The legislative procedure of the EU is notoriously complex with each of the main institutions involved to differing degrees and at different stages depending on the procedure being followed. Generally speaking, directives, regulations and decisions are proposed by the Commission and adopted by the Council and the Parliament; ECOSOC and COR play a consultative role by issuing opinions where required by the Treaties.

Ideas for Commission legislative proposals derive from many sources and those which are to be pursued are included in the Commission's annual legislative work programme (normally published towards the end of each calendar year). One Directorate-General ("DG") will normally take the lead in formulating the details of a particular proposal. The Commission officials in this DG will consult formally or informally with interested parties, particularly "Expert Groups" of industrialists, scientists and national civil servants, Member States, other DGs and the Commissioners' cabinets. When the lead DG is satisfied with the proposal it will pass it on to other DGs with an interest in the proposal for formal consultations. The proposal will then go to the Commissioners via their cabinets, for adoption as Commission policy.

Non-controversial proposals may be approved by the members of the Commissioners' cabinets, subject to endorsement by the Commission. Controversial proposals are discussed by the Commissioners themselves. The Commission is a collegiate body and, as such, takes decisions collectively. Decisions taken by way of majority voting (i.e. thirteen out of 25 votes) are thereafter the decisions of the Commission as a whole.

Once the Commission has adopted a proposal it is allocated a "COM" document number and passed to the Council and Parliament for further consideration. The exact procedure from this point depends on the legal base of the proposal.

Whichever procedure is followed, the Council is almost always involved. The majorities required in the Council to adopt different types of legislation will vary. The Treaties require either unanimity (increasingly rare but still used, for example, for taxation matters) or a qualified majority. The Council may also take certain decisions by simple majority.

The unanimity requirement, when applicable, means that one Member State may block a proposal even if all the other Member States are in favour. To avoid this situation (particularly in an enlarged Union), the Amsterdam Treaty extended qualified majority voting ("QMV") to several areas where unanimity was previously required and many of the new provisions it introduced are also subject to QMV. These include measures concerning employment, social exclusion, sex equality, public health and customs co-operation. The Treaty of Nice allows QMV in ten further areas where unanimity was previously required. They include freedom of movement for citizens, judicial co-operation in civil matters, the conclusion of international economic financial and technical cooperation with third countries and the Rules of Procedure of the EU Courts.

With QMV, each Member State is awarded a "weighting" roughly commensurate with its population. The Treaty of Nice changed in the weighting of votes from 1 January 2005.

From 1 January 2005 a qualified majority will be obtained if a decision receives a specified number of votes (232 votes out of a total of 321) and is approved by a majority of Member States. In addition, a Member State may ask for confirmation that the qualified majority represents at least 62% of the total population of the EU. If this is found not to be the case, the decision will not be adopted.

The Parliament normally acts either by absolute majority (i.e. a majority of the total number of MEPs - 367 votes) or by simple majority (a majority of MEPs voting) depending on the type of decision being taken.

There are five main legislative procedures: the area of competence covered and the provisions of the relevant Treaty dictate which must be followed. The main features of these procedures are outlined below. The most commonly used is the co-decision procedure. 

(i) Adoption by Council
In certain areas the Council, having received a proposal from the Commission, is entitled to adopt legislation without involving the Parliament, for example, in relation to trade law and economic policy. The Council will however generally, by convention, inform the Parliament and allow it to comment. It is not bound by such comments.

(ii) Assent Procedure
The Maastricht Treaty limited the scope of the Assent procedure to the organisation of the Structural and Cohesion Funds. Under this procedure the Council acts by unanimous decision, but must secure the assent of the Parliament. The Parliament's assent is also required to important international agreements concluded between the EU and a non-member country or group of countries, such as the accession of new Member States and association agreements with third countries. The Parliament's assent requires an absolute majority of the total number of MEPs.

(iii) Consultation Procedure
The Commission issues a draft proposal. The Parliament gives an Opinion on the proposal which is not binding. The Council may then adopt the proposal (by a qualified majority or unanimous vote) whether or not the Parliament's Opinion is in favour. This procedure was the earliest process within the Community but has become less and less important since the co-operation and codecision procedures came into being.

(iv) Co-operation Procedure
This procedure was introduced by the Single European Act and gave the Parliament a stronger role than in the consultation procedure. However since the introduction of the Amsterdam Treaty it has only been used for matters relating to economic and monetary union. In other areas it has been replaced by the co-decision procedure.

(v) Co-decision Procedure
The Co-decision procedure, introduced by the Maastricht Treaty, gives the Parliament stronger powers of veto and amendment. This procedure is now the most common method of passing EU law. Following ratification of the Constitutional Treaty, it will become known as the "ordinary legislative procedure", and will apply in 73% of all policy areas. It gives the Parliament the right to amend or reject draft texts and encourages the Parliament and the Council to seek agreement on a common text. The procedure was simplified by the Amsterdam Treaty and its sphere of application extended to new provisions of the Treaty as well as to areas which previously came under the Assent, Consultation or Co-operation procedures. It gives Parliament the same powers as the Council.

The Commission submits a proposal to the European Parliament and the Council. The Parliament gives its Opinion and forwards it to the Council, with or without amendments. After receiving the Opinion the Council either adopts the proposal by a qualified majority if it approves all of the Parliament's amendments (or if the Parliament has not proposed any amendments) or it adopts a common position.

Where the Council has adopted a common position, this position is communicated to the Parliament for a second reading. Within three months the Parliament may either: (i) take a decision; (ii) approve the common position; or (iii) amend the common position. The Parliament may also indicate its intention to reject the common position, by an absolute majority of its members. If the Parliament has not proposed any amendments the Council will adopt the proposal definitively. Otherwise the Council has three months to approve all of the Parliament's amendments and then adopt the proposal definitively.

If within three months the Council has not approved all of the Parliament's amendments, the Conciliation Committee is convened as quickly as is possible within the next six weeks. The Conciliation Committee is composed of members of the Council and an equal number of MEPs. Its task is to reach agreement on a joint text on the basis of the Council's common position and the Parliament's amendments. 

If the Committee reaches agreement within six weeks the joint text may be adopted by the Parliament by a simple majority and, by a qualified majority of the Council. If the Committee does not reach agreement, the proposal falls (i.e. it is abandoned). Similarly, if the joint text is not approved by either the Council or the Parliament, it again falls.

The co-decision procedure is used in the areas of freedom of movement for workers, freedom of establishment, freedom to provide services, the internal market, education, culture, transport policy, health, consumer protection, research and the environment.

Presenting a Case
The complexity of EU institutions and legislative procedures can appear to present an obstacle to effective representation. The institutions of the European Union have nevertheless been open and willing to listen to, and act upon, the concerns of those who may be affected by its policy, possibly more so than many national governments. This is probably due to two factors:

1. the sheer difficulty of drafting legislation which is intended to have effect throughout so many disparate nations; this makes the obtaining of information from external sources essential; and

2. the political need for the EU to be seen to be serving its citizens, rather than legislating in a vacuum.

In presenting a case, it is essential to be aware of the legislative process, to know how decisions are taken and how both can be influenced. The importance of communicating with a politician or official in his or her native language should not be overlooked.

The starting point in any campaign of lobbying must be to establish a clear and realistic objective. Meetings with officials at all levels are likely to produce little result if it is not clear what they are intended to achieve. Is new legislation necessary or can the same result be obtained in another way?

A clear understanding of the current law and how the proposals will interact with it is important; it may also be useful to make a detailed analysis of current EU and national policies in the relevant area. How will the Commission, the Parliament and the different Member States react to the proposal? Is it possible to identify other potential allies throughout Europe that will be affected by the proposals in a similar way and that might wish to support the case?

The strategy to be adopted may be distilled into four questions: Where, at what level, who and when?

Where?
Even when a measure is proposed at EU, rather than national level, it cannot be assumed that representations need only be made to EU officials in Brussels. In formulating its draft legislation the Commission works in close contact with national administrations. Member States' representatives will be consulted both before the Commission puts forward a formal proposal and afterwards in the Council. Accordingly, and especially in cases where some Member States may take a keen interest in the legislation concerned, it can be very effective to make representations directly to one or more Member States, whose input to the Commission is likely to carry more weight than that of a single company or individual. The Member State also, of course, has a direct say in the deliberations at Council level. The choice of whether to lobby at European or national level (or both) will be influenced by timing as well as by the political element. Almost all issues have some political element but generally speaking, issues which hinge on points of law or technical specification are better discussed directly with Commission officials.

At what level?
The lowest level of the Council (the Council Working Groups) consists of officials from government departments. These groups examine the technical aspects of legislation. The next level up, COREPER, is staffed by ambassador-level representatives from the Member States who will seek to finalise the Council's view on proposed legislation. Finally, the proposals will come before the Ministers who may rubber stamp them if agreed at a lower level, or may re-open matters of policy. It will often be necessary to lobby at all three levels progressively as the legislation passes up (and down) the chain.

The level at which to make an approach depends very much on the subject matter and its political sensitivity. The Council of Ministers, for example, will normally have little input into the detailed wording of proposed legislation. The same applies to the Commissioners. It is not always the most senior person who will be able to provide the help needed. Nevertheless, some issues will be of such high political content that officials further down the line will be unable to make a decision and will be subject to direction from above. In these circumstances it will be necessary to make an approach at the highest level.

Who?
Commission - When approaching the Commission it is necessary to identify the most appropriate Commissioner, or Commissioners and which Directorates are dealing with the issue. The most appropriate Commissioner will normally be the one into whose portfolio the matter falls. There may also be occasions when approaching a relevant national Commissioner or Commissioners or those with the right political complexion will be useful, particularly in view of the Commission's collegiate nature. Whilst one Directorate-General will lead on a particular proposal, others may also be closely involved. All angles should be considered.

Council - The Council operates on different levels. Where qualified majority voting applies it may be necessary to try to put together or break up a blocking minority, taking account of the Member States that have most influence in terms of numbers of votes. Businesses should however be aware that political deals are often done behind closed doors in the Council, with Member States using one issue as a lever for something completely different. This makes it difficult to predict the outcome of many negotiations. It will be essential to stay in touch with the official representing your national interests on the Council working group and with staff at the relevant Permanent Representation in Brussels. You may also choose to make representations directly to the relevant Minister at a national level.

Parliament - The European Parliament is increasingly a focus for lobbying efforts as its powers grow. The Parliament, stressing its role as the EU's only democratically elected institution, is increasingly eager to flex its political muscle. Successive Treaties have increased its role in the legislative procedure, particularly by widely extending the use of the Co-decision procedure in which it has the power of absolute veto. While such a veto requires an absolute majority of the Parliament, this is less difficult to achieve than one might imagine in a Parliament of so many widely divergent interests. One of the interests which bind the MEPs together is their common desire to increase the powers of the Parliament. It is therefore possible to assemble a coalition more easily than in national parliaments.

ECOSOC and COR, whilst having less power, cannot be disregarded since their opinions can carry some weight with the Commission on issues on which they have specialised knowledge.

In attempting to persuade the Parliament to amend a Commission proposal it is best to act when the matter is still in committee. This is because any amendment voted through at that level (a "committee amendment") has a far greater chance of being adopted by the plenary session.

In addition to amending proposals, MEPs may also be useful in that they tend to have good access to national administrations and EU institutions and therefore can be helpful in obtaining information from those sources.

When?
The golden rule in trying to influence legislation is the earlier the better. Input before policy is formulated is simpler and more effective than a last-minute intervention after a directive is proposed (when it is normally too late to have any real influence). There are, of course, exceptions to every rule and it can sometimes be extremely damaging to a case to raise it too early, e.g. in alerting Commission officials to a problem which they were not aware existed. To get the timing of each part of a multilateral approach right it is necessary to have a clear knowledge of the steps in the legislative process and to monitor the progress of a directive closely.

Information
Information is of vital importance at all stages. Without it, a company or individual may not even be aware that there is a problem. It is therefore important to monitor developments closely so as not to be caught unawares or let opportunities slip by unnoticed.

Objectives
The first step in structuring any campaign will be to establish very clearly the objective(s) of the campaign. It is useful to identify the best outcome one could hope for, fall-back situations which may be satisfactory if the best outcome cannot be achieved and, finally, a "worst case scenario" damage limitation position. The objective(s) should be stated in as precise terms as possible at this stage and note should be taken of any restraints as to timing and resources. It is preferable to present an aim in a positive rather than negative light. When dealing with EU institutions, particularly the Commission and the Parliament, aligning oneself with the future positive development of the EU and known EU aims will generally improve the chance of a favourable outcome.

Identify and co-ordinate support/opposition
Officials and politicians will usually lend a more favourable ear to views which are represented as those of an industry as a whole or at least representing more than one interest. This is for two reasons: (i) it cuts down the number of people they have to talk to; and (ii) the views will appear to have a broad base of support. Contributions from European federations are generally welcomed by the EU institutions. It is therefore useful to consider very early on who might constitute allies with a view to co-ordinating external pressure. Whether a submission will be made jointly with such allies or whether the views will simply be co-ordinated so that the official or politician is receiving the same message from different parties, the effect is enhanced. Such an alliance may, however, require too much compromise before a common standpoint can be reached.

It is also useful to identify the opposition and to keep a watch on what they are doing.

Written brief
There is a need for a clear and concise brief covering the background to the issue, the reasons why change is necessary (or unnecessary, as the case may be), potential arguments against and counter-arguments, benefits which might accrue and a possible timescale. This document can then be used as a basis for sending briefings to officials prior to a meeting, or instead of a meeting, briefings to the press, briefings to a Minister, a basis document for forming a coalition etc. The length of the document can be tailored for its recipient. Thus, generally, senior politicians will prefer a short document of not more than a few pages while more junior officials may appreciate a more detailed document. The usual rule will be to keep the document as short as possible but the document must not be so short as to omit pertinent facts or to be difficult to read.

Meetings with officials and politicians
The briefing document will be an important tool both for the campaigner, to keep clearly in mind what the relevant issues are, and for officials or politicians who will be glad to have a written statement of the position. Before attending a meeting it is important to find out who will be attending and what languages they speak and to select the persons attending from your side accordingly. It is helpful to have some background information on the officials/politicians attending and to try to ensure that they are at an appropriate level (the more senior is not always the better). It is also useful to be clear what each particular meeting hopes to achieve. If the aim is to gather information, then it is obviously better not to spend the whole meeting talking! If, however, the purpose of the meeting is to put across a particular message to the official or politician, then it is important that this be done clearly and succinctly. Presenting a solution rather than merely setting out objections, will always be better received.

Publicity
Publicity can take various forms, some of which are more controllable than others. For example, briefing the press may of course result in adverse coverage. On the other hand, it is sometimes possible to contribute an article to a newspaper or journal which highlights the issue. This at least ensures an initial favourable report. In addition to involving the media, advertising, seminars, petitions and letters to politicians can all play a part. No political institution is immune to the force of public opinion. The European Union is no exception and the "postbag" factor can be persuasive in causing ministers and officials to review policy.

• Eurostat

• Press and Communication

• Publications Office

• Secretariat General

• European Anti-Fraud Office

• Agriculture and Rural Development

• Competition

• Economic and Financial Affairs

• Education and Culture

• Employment and Social Affairs

• Energy and Transport

• Enterprise and Industry

• Environment

• Fisheries

• Health and Consumer Protection

• Information Society and Media

• Internal Market

• Joint Research Centre

• Justice, Freedom and Security

• Regional Policy

• Research

• Taxation and Customs Union

• Development

• Enlargement

• External Relations

• Humanitarian Aid Office - ECHO

• Trade

• Europe Aid - co-operation office

• Budget

• Legal Service

• Personnel and Administration

• Translation Service

• Group of Policy Advisers

• Internal Audit Service

• Informatics

• Infrastructure and Logistics

Responsible for exercise of the European Parliament's budgetary powers.

Responsible for accounts and expenditure of the EU and relations with the Court of Auditors.

Responsible for monetary policy, medium and long-term economic and monetary planning, tax provisions, progressive establishment of the Economic and Monetary Union and relations with the ECB.

Responsible for living and working conditions, employment policy, pensions, salary and equal pay, vocational training, free movement of workers, migrant workers and information and consultation of workers.

Responsible for EU environmental policy and protection at regional and international level, food content, colouring and labelling and public health (programmes on health education, pharmaceutical products, medical research, cosmetic products and civil protection).

Responsible for the Union's industrial policy and the application of new technologies, including measures relating to SMEs; research policy; space policy; the activities of the Joint Research Centre and the Central Office for Nuclear Measurements. It is also responsible for measures relating to energy policy in general, the security of energy supply and energy efficiency including the establishment and development of trans-European networks.

Responsible for the free movement of goods, including the harmonisation of technical standards; the right of establishment; the freedom to provide services except in the financial and postal sectors; measures aiming at the identification and removal of potential obstacles to the functioning of the internal market and the promotion and protection of the economic interests of consumers, except for public health and food safety issues.

Responsible for the development of a common policy for rail, road, inland waterway, maritime and air transport, in particular the common rules applicable to transport within the EU, the establishment and development of trans-European networks in the area of transport infrastructure, the provision of transport services and relations in the field of transport with third countries; transport safety and relations with international transport bodies and organisations. It is also responsible for postal services and tourism.

Responsible for regional and cohesion policy, in particular the European Regional Development Fund, the Cohesion Fund and other instruments of the Union's regional policy; assessing the impact of other Union policies on economic and social cohesion; co-ordination of the Union's structural instruments; the outmost regions and islands as well as trans-frontier and interregional co-operation; and relations with the Committee of the Regions, inter-regional co-operation organisations and local and regional authorities.

Responsible for co-operation of the common agricultural and forestry policy, rural development, veterinary legislation, agri-foodstuffs industry and the Community Office for Plant Varieties.

Responsible for the operation and development of the common fisheries policy and its management; the conservation of fishery resources; the common organisation of the market in fishery products; structural policy in the fisheries and aquaculture sectors, including the financial instruments for fisheries guidance; and international fisheries agreements.

Responsible for youth policy and the development of a sports and leisure policy; information and media policy; audiovisual policy and the cultural and educational aspects of the information society; the EU's education policy and cultural aspects.

Responsible for legal issues, e.g. civil and commercial law, company law, intellectual property law, procedural law, environmental liability and sanctions against environmental crime; ethnical questions related to new technologies; the interpretation and application of EU law and of international law in so far as the EU is affected; and the organisation and statute of the Court of Justice.

Responsible for matters relating to citizens' rights, human rights and fundamental freedoms in the EU, discriminations, personal data and the free movement of such data, matters relating to the maintenance and development of an area of freedom, security and justice.

Responsible for matters relating to the development of European integration, the institutional consequences of enlargement, the implementation of the EU Treaty, general relations with the other institutions of the EU, the Rules of Procedure of the European Parliament and the drawing up of a draft uniform electoral procedure.

Responsible for the definition and evolution of women's rights in the EU and the policy on equal opportunities.

Responsible for examination of petitions and relations with the Ombudsman.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.