M 01.04 From Draft Directive to Law

Laws in the EU

The European Union is based on the principles of intergovernmentalism, that is the cooperation between states on governmental level within an international organisation, and supranationalism. That is to say the EU can pass binding laws for all its member states. It implies that the member states have to give up a certain part of their political self-determination in favour of the Union.

If the EU wants to pass a law, there are two possible ways to do so: Either a regulation or a directive can be determined.

Regulations are laws that are valid for all member states as soon as there are entered into force. They have to be implemented according to the EU’s determination. National laws concerning a particular political field are replaced by an EU regulation if they concern the same field.

An example for this is the General Data Protection Regulation which has to be implemented by the member states since May 2018. The regulation determines how to handle the personal data of the European citizens which are available to companies and public authorities. The regulation determines that all EU citizens may request the deletion of their personal data if there is no reason for companies to store it.

Directives determine an aim which has to be achieved until a certain date. How the member states achieve this aim is their own responsibility. The EU may make recommendations how to get there. These recommendations, however, are not binding. The member states have to pass national laws or adjust existing laws to transpose the directive. The advantage of such a directive is the fact that national differences according legislation can be taken into consideration.

An example is the directive on the reduction of the impact of certain plastic products on the environment from 2015. For instance, this directive provides that the use of thin plastic bags needs to be reduced to 90 bags per inhabitant by 2019. A further reduction to only 40 thin plastic bags per inhabitant needs to be achieved by December 2025. National governments can decide individually whether thin plastic bags will be more expensive for consumers or whether they will be banned completely. Thus, the member states may find their own arrangements.

How are laws created within the EU?

The legislative procedure usually starts with a legislative proposal by the European Commission. The Commission holds a right of initiative. That is to say that only the European Commission is allowed to propose such a draft piece of legislation. The legislative proposal is discussed in the European Parliament during the first reading. The members of Parliament may propose changes in case they are not satisfied with the text. The members of Parliaments then vote on the adoption of the law. Additionally, the Council of the European Union has to vote on the legislative proposal and the changes. If the Council of the European Union approves, the law will be adopted. In case the Council of the European Union proposes changes, there will be a second reading in the Parliament. The members of parliament will then vote on the changed proposal. In case Parliament and Council do not agree, a Conciliation Committee is set up. The Committee is composed of members of both organs. The Committee deliberates on a new legislative proposal. If they agree on a proposal, it will be discussed in a third reading in Parliament. Further changes are not allowed any more. If Council and Parliament do not agree or both reject the proposal, the law will not be adopted.

A whole bag of tricks to protect the environment

Example plastic bags

It is not a secret anymore that plastic waste is polluting the oceans. There is not a simple formula for success that could solve this problem – and even more so if only few stakeholders deal with it.

Environmental protection is an important matter for the EU. And although most plastic waste polluting the oceans today does not originate in Europe, the EU speaks up for further reduction of the European share in that waste.

From initiative to directive

Even though the directive on the reduction of the consumption of lightweight plastic carrier bags entered into force in 2015, its proposal is much older. Janez Potočnik, the former EU Environment Commissioner, advocated such a law to reduce the pollution of the oceans already in 2011. Potočnik also considered an EU-wide ban of plastic bags.

Subsequently, surveys were conducted throughout the EU to find out about the actual consumption of plastic bags in the individual member states. The surveys said that the consumption varies among the member states: Some member states use less than 20 plastic bags per inhabitants, others use more than 400.

In November 2013, the European Commission made a legislative proposal. This proposal aimed at the reduction of certain plastic bags.

The European Parliament as well as the Council of the European Union changed the proposal. The Parliament added an exception for bags used for raw meat or diary products for hygienic reasons. Therefore, there was a second reading in Parliament before the law was adopted with many changes. Only few members of Parliament voted against the law. The legislative procedure was concluded in April 2015; the whole process from publishing the legislative proposal to last voting took one and a half years. Taking the work in advance into consideration, it took even longer.

Who has their fingers in the pie?

The changes of the primary text made by Parliament and Council can be backtraced in the records of Parliament. However, critics fear that the text’s exact wording had been influenced by someone else: namely the representatives of the plastic industry in Europe. Since many politicians are counselled by lobbyists (e.g. representatives from economy, consumer organisations or environmental organisations) this is not unlikely. The advocacy groups frequently even promote their successes. But more often than not it is rather difficult to find out who influenced the process by whatever means.

In this case criticism levels at the maximum thickness of plastic bags that is determined by the directive. The directive’s text states that thicker bags are not concerned by the directive because they are more likely to be reused than thin plastic bags. But a majority of the thick plastic bags is produced within the EU. This is why the accusation that rather economic than environmental reasons were crucial in the process cannot be ignored.

Author: Selina Kalms

Link collection:

*Records of the European Parliament: https://oeil.secure.europarl.europa.eu/oeil/home/home.do

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016R0679

Page of European Parliament containing information on legislative procedure: http://www.europarl.europa.eu/ordinary-legislative-procedure/en/ordinary-legislative-procedure.html

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016R0679

Directive (EU) 2015/720 of European Parliament and of the Council of 29 April 2015 on directive 94/62/EG concerning the reduction of consumption of lightweight plastic carrier bags: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32015L0720

Page of European Parliament about legislative procedure concerning directive (EU) 2015/720: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2013/0371(COD)&l=en#keyEvents

Advocacy group Alber&Geiger about influencing directive (EU) 2015/720 on behalf of Papier-Mettler: https://albergeiger.com/wins/plastic-bag-ban/
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