EU lawmaking 2009 / 2010 Simulation

EU lawmaking Practice and Procedure 2013-2014

Simulation

I.Introduction

For the EU law simulation this year, the focus will be on the so-called Concessions Directive (Directive 2014/23 of the European Parliament and Council on the award of concession contracts; you find the text of the directive in the Blackboard page under the link Simulation). Certain aspects of this new piece of EU legislation have proven to be quite contentious, not in the least the question whether the Concessions Directive should be applicable to public water services.

It has been the original intention of the Commission to bring water within the scope of the Directive. The original proposal thus included in its scope:

3.As far as water is concerned:

(a)the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water;

(b)the supply of drinking water to such networks.

This Directive shall also apply to concessions awarded or organised by entities which pursue an activity referred to above and which are connected with one of the following:

(a)hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations, or

(b)the disposal or treatment of sewage

This inclusion of public water supply in the Concessions Directive was so controversial that it triggered the first successful application of the new mechanism of the Citizens Initiative (CI), the Water and Sanitation are a human Right campaign. This obviously increased the political pressure on the Commission to somehow accommodate the citizens concerns (i.e. that prices for water might increase as can be witnessed for instance in Portugal and Greece).

II.The Simulation

For this simulation we will re-enact some of the steps taken prior to the final adoption of Directive 2014/23 on 26 February 2014. We will thus assume that the directive is still a proposal and that the Commission organizes a Commission meeting with a number of stakeholders in order to speed up the negotiation process. It thereby puts on the table the proposal to amend the original proposal by adding the following provision:

The Commission proposes that a new Article 12 will be inserted in the original proposal, worded as follows:

Article 12

Specific exclusions in the field of water

1.This Directive shall not apply to concessions awarded to:

a) provide or operate fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water;

b) supply drinking water to such networks.

2.This Directive shall also not apply to concessions with one, or both of the following subject-matters when they are connected with an activity referred to in paragraph 1:

a) hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20% of the total volume of water made available by such projects or irrigation or drainage installations; or

b) the disposal or treatment of sewage.There will also be an amendment to article 53 of the Concessions Directive:

Article 53

Monitoring and reporting

(...)

The Commission shall assess the economic effects on the internal market of the exclusions set out in Article 12 taking into account the specific structures of the water sector, and report thereon to the European Parliament and the Council by 18 April 2019.

(...)

III.The Assignment

The assignment consists of two parts: the drafting of a position paper and a simulation of the negotiations. You will be graded on your position paper as a group, for the negotiations you will receive an individual grade.

For this simulation the class will be divided into the following groups (of 3 or 4 people each):

1. the European Commission

2. the European Parliament3. One Member State in favor of the amending proposal of the Commission4. One Member State opposing the amending proposal of the Commission5. Civil Society: the pan-European Branche organisation for the water supply industry (assembling the interest of private water companies) 6. Civil Society: the pan-European organisation of water consumers (largely overlapping with the organisers behind the Citizens Initiative).

The teaching staff will chair the Commission meeting during the negotiations, they will act as legal council of the Commission, thereby also keeping a certain distance from the Commission as an EU Institution and stakeholder in its own right during the negotiations. When writing the position paper, you should, as a team, start with an analysis of the situation:

A. Analysis

Make an analysis of the position on the proposal for the actor you represent.

Find out what issues are most relevant for your actor and how the proposal influences them.

Determine what the main objectives to achieve will be for your actor.

Make a face value analysis of the position of the other actors in the debate.

Determine whether the arena of stakeholders is friendly, unfriendly or indeterminate for your actor.

For this you might want to use the instrument stakeholders analyses (Dossier Homework).

The Position paper should then have the following structure (mutatis mutandis):

B. Position Paper

Write a position paper on the most important issues in the proposal at stake for your actor.

This paper should contain:

An analysis of your own position, including (but not limited to)

i) scope; ii) legal base; iii) subsidiarity / proportionality; iv) implementation/application; v) balance of free movement of services fundamental social rights; vi) preferred alternatives for the proposal.

A lobby strategy, including:

i) the final position what your actor is prepared to accept; and ii) deal breaking issues on the other hand.

C. Negotiations (Monday 19 May 2014)The agenda will be as follows:

13.00-13.10 Introduction: management of multilateral negotiations in the EU 13.10-13.45 Tour du table (maximum 5 minutes speaking time) 13.45-14.40 Negotiations 14.40-14.50 Conclusions 14.50-15.00 Presentation of the final result, feedback on process and content, self-assessment.It is the groups responsibility that all members of the team get a chance to speak on behalf of the group in the negotiation simulation.

*.*.*.*.*.*.* The rest of the original proposal can be found on Blackboard under the link Simulation.

Be mindful that the students must do more than repeat the arguments in the Citizens Initiative. They must make a fresh assessment of the Commissions proposed article 12 and evaluate whether it satisfies their concerns.