The new era of lobbying - Chapter 10 : The European Union legal system disturbed

Alain-Patrick Umucyo By Alain-Patrick Umucyo, 22nd Jan 2015 | Follow this author | RSS Feed | Short URL http://nut.bz/3bszvevm/
Posted in Wikinut>Writing>Columns & Opinions

“The law of the Union is ever growing and it seems now certain that, with the terms law of the Union, we refer not to a specific domain of the law but to a legislative and jurisprudential setting similar to that of a State.”(1)

This introduction underlines the existence of a series of rules with constitutional value, the primary law, which prevail over secondary rules. However the technocratic undertakings promoted by the European Commission(2) weaken the foundations of this legal setting.

1 The weakening of the primary law

The group Corporate Europe Observatory (CEO) has disentangled the signs of the weakening of the EU primary law in its study paper entitled The crusade against 'red tape': How the European Commission and big business push for deregulation(3). The study evokes the lack of interest from the European Commission concerning an agreement between the EU social partners. The author highlights this intriguing reaction noting that : “a procedure set out in the EU Treaties (…) requires the Commission to assess and act in cases where social partners (the bodies representing employees and employers in a given sector) agree on the need for legislation.”(4)

An even more worrying subject relates to the recommendations of the High Level Group on Administrative Burdens. This group, whose mandate expired on 31 October 2014, advised “the Commission on how to reduce administrative burdens linked to its legislation.”(5)

CEO's study indicates that the final report of the High Level Group introduces, among others, the requirement for “member states to explain when they are 'gold-plating' – when member states implementing an EU directive go beyond the minimum level it sets.”(6) The author argues however that : “Many EU directives – particularly in areas like health and safety – are a 'minimum floor'”.(7) The member States remain free to enact more protective measures. So “the use of this pejorative term ‘gold-plating’ can (…) be seen as an attempt to manipulate our perception of EU law.”(8)

The goal of the manipulation is to reinforce the minimum application of EU directives. This contributes to modify the purpose of such pieces of legislation, which become de facto regulations. The distinction between an EU directive and an EU regulation is that the later “shall be binding in its entirety and directly applicable in all Member States”(9) whereas the former “shall leave to the national authorities the choice of form and methods.”(10) Thus a regulation gives no leeway, an ideal situation for lobbies(11).

2 The erosion of the secondary law

It is in the domain of the secondary law of the European Union that lobbies disrupt the most the EU legal system. This is due to the privileged position allowed for private interests in the EU legislative process(12). The many consultations, assessments and other performance checks are exclusively lead by the European Commission which benefit from the work of experts whose independence vis-à-vis big businesses proves sometimes to be inexistent.(13) The European Parliament is therefore out of these procedures which mould the legislative proposals. This advances the shifting of “power from the democratically elected Parliament, and its oversight role, into the hands of external experts, consultants and ‘interested’ stakeholders (predominantly business and industry lobbies)”.(14)

This intermediate plight between The turning point Jack Abramoff(15) and The precedent set by Bradford L. Smith(16) is decisive. The issues of legitimacy that it bears will be put aside by the very ones who are at their source. Indeed, if this plight remains unchanged, lobbyists will put forth the good functioning of a system which disregards the democratically elected European Parliament to strengthen their privileged positions inside the EU institutions. This success being an asset, they will replicate this strategy directly in the member States.(17)

The present chapter is part of The new era of lobbying volume.

SOURCES

(1)Author's translation from French. ROSAS, Allan, LEVITS, Egils, BOT, Yves. Avant propos. In La Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence. The Hague : T.M.C Asser Press, 2013, p. vii

(2)UMUCYO Alain-Patrick. The new era of lobbying - Chapter 9 : The technocracy at the helm (online). 18 December 2014. Wikinut. <http://www.wikinut.com/in/xgdhii/business.wikinut.com/2-2-%3A-The-new-era-of-lobbying-Part-6-%3A-The-technocracy-at-the-helm/29ixuc6-/> accessed 29 December 2014

(3)TANSEY Rachel. The crusade against 'red tape': How the European Commission and big business push for deregulation (online). October 2014. Corporate Europe. <http://corporateeurope.org/sites/default/files/attachments/red_tape_crusade.pdf> accessed 12 November 2014

(4)Ibidem

(5)EUROPEAN COMMISSION. High Level Group on Administrative Burdens (online). Last update : 04/11/2014. European commission. <http://ec.europa.eu/smart-regulation/refit/admin_burden/high_level_group_en.htm> accessed 21 January 2015

(6)TANSEY Rachel. The crusade against 'red tape': How the European Commission and big business push for deregulation (online). October 2014. Corporate Europe. p. 9 <http://corporateeurope.org/sites/default/files/attachments/red_tape_crusade.pdf> accessed 12 November 2014

(7)Ibidem

(8)Ibidem

(9)Article 288. Treaty on European Union and the Treaty on the Functioning of the European Union (online). Official Journal of the European Union. C 326 , 26/10/2012 P. 0001 – 0390. Eur-lex. <http://eur-lex.europa.eu/legal-content/EN-DE-FR/TXT/?uri=CELEX:12012E/TXT&from=DE> accessed 21 January 2015

(10)Ibidem

(11)UMUCYO Alain-Patrick. The new era of lobbying - Chapter 5 : XXIst century lobbying, the new power (online). 22 November 2014. Wikinut. <http://www.wikinut.com/in/xgdhii/www.wikinut.com/2-2.-the-new-era-of-lobbying.-part.-3-%3a-xxist-century-lobbying%2c-the-new-power/3vbzk5hj/hhdflewp/> accessed 21 January 2015

(12)UMUCYO Alain-Patrick. The new era of lobbying - Chapter 9 : The technocracy at the helm (online). 10 December 2014. Wikinut. <http://www.wikinut.com/in/xgdhii/www.wikinut.com/2-2-%3a-the-new-era-of-lobbying-part-6-%3a-the-technocracy-at-the-helm/29ixuc6-/1er5c9zx/> accessed 21 January 2015

(13)Ibidem

(14)TANSEY Rachel. The crusade against 'red tape': How the European Commission and big business push for deregulation (online). October 2014. Corporate Europe. p. 7 <http://corporateeurope.org/sites/default/files/attachments/red_tape_crusade.pdf> accessed 12 November 2014

(15)UMUCYO Alain-Patrick. The new era of lobbying - Chapter 3 : The turning point Jack Abramoff (online). 18 November 2014. Wikinut. <http://www.wikinut.com/in/xgdhii/www.wikinut.com/2-2-%3a-the-new-era-of-lobbying.-part-2-%3a-the-turning-point-jack-abramoff/323wgfcu/30b_670w/> accessed 21 January 2015

(16)UMUCYO Alain-Patrick. The new era of lobbying - Chapter 4 : The precedent set by Bradford L. Smith. (online). 16 November 2014. Wikinut. <http://www.wikinut.com/in/xgdhii/www.wikinut.com/2-2-%3a-the-new-era-of-lobbying.-part-1-%3a-the-precedent-set-by-bradford-l.-smith./2i6lv8lb/3ook0upk/> accessed 21 January 2015

(17)UMUCYO Alain-Patrick. The new era of lobbying - Chapter 7 : The Austrian model (online). 27 November 2014. Wikinut. <http://www.wikinut.com/in/xgdhii/www.wikinut.com/2-2-%3a-the-new-era-of-lobbying.-part-4-%3a-the-austrian-model/2umy7rdm/kqvtm17g/> accessed 21 January 2015

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