Enabling and disabling structures

The European policy making procedures have changed considerably in the past two decades, triggering a shift in the relationship between the European

Parliament and the Council. The Single European Act of 1986 instituted two readings and a cooperation procedure, in which the European Parliament had to give its assent to agreements and could reject a common council position by absolute majority of its members (1986). In this arrangement, however, the Parliament was dependent on the Commission’s support even when amendments were voted by the absolute majority. The signature of the Maastricht Treaty (1992) would rectify the problem by

introducing a co-decision procedure in which the Parliament is able to adopt legal instruments together with the Council through direct negotiation in up to three

readings. For most cases of co-decision procedure, there is not a need for unanimity in the Council but qualified majority voting. Maastricht also created a Committee of the Regions, with representatives of regional authorities, and expanded the Community reach to areas such as consumer policies.

The Amsterdam Treaty (1997) amended Maastricht and extended the co- decision procedure to further areas of policy but reduced readings to two. In a nutshell, the process consists of a first step in which the Commission drafts the bill asked by the Council and the Parliament has a first reading, either approving it or voting amendments. If there are amendments, the proposal goes back to the Council for a first reading. If Council accepts EP amendments as they are, the text is adopted; if not, a Common Position is adopted by the Council. The Common Position is then examined by the Parliament, which can approve it as it is or vote new amendments in second reading. If the Council does not approve Parliament amendments to the Common Position, the process turns to Conciliation. Conciliation entails direct negotiations between Parliament and Council aiming at a common text. When the chemical legislation started to be drafted, therefore, the co-decision procedure had just been simplified to two readings and Parliament and Council were theoretically on equal footing regarding legislative power. Since December 2009, with the

homologation of the Lisbon Treaty (2007), the Parliament and the Council are involved in co-decision for most types of legislation, including sensitive issues such as the budget and agriculture procedures. While this does not affect the case examined here, it gives a sense of the constantly evolving nature of institutional procedures.

Environment protection was not originally included in the Treaties and only appeared officially in the Single European Act as an active legislative area. In practice, however, it has been a traditional concern for European policy makers. By 1987, around 200 pieces of legislation had been introduced based on articles of the Treaty of Rome allowing policy making in areas that affect the common market or are necessary to attain common goals (Focus 2007). The impact of these laws on nation states is substantial: in 1994, John Gummer, British Minister for the Environment, calculated that 80% of the UK environmental legislation were originated in Brussels and Strasbourg rather than domestically (Lowe and Ward 1998, p.25).

Part of this drive towards green legislation is connected to the establishment of institutional presence by NGOs in Brussels. Greenpeace, WWF and Friends of Earth arrived as pioneers in the end of 1980s, while more specialised lobbyists such as Climate Action Network and BirdLife International opened offices in the early 1990s (Long 1998). Part is linked to changes initiated by the Commission. A request from DG XI for environmental groups to become more organised to facilitate the exchange of information led to the creation of the Gang of Four (EEB, WWF, Greenpeace and

FoE), which has become the G1024. Consultation arrangements between the group and DG Environment were extended and formalised throughout the 1990s, with at least two annual meetings being held with the Director General or Commissioner and one with the president of the Commission. NGOs became more involved in different advisory and working groups within DG Environment but also gradually in Trade, Agriculture and Fisheries, Development and Social and Economic Affairs (Long and Lorinczi 2009).

Following Maastricht, when a significant amount of policy areas were still not eligible for co-decision, the Environment Committee in Parliament was involved in 80% of all the conciliations that ever took place, with the remaining 20% divided between Social Affairs and Energy Committees (Wurzel 1999, p.7). Leading the Committee until 1999 was British MEP Ken Collins, credited with Parliamentary victories such as the push for a much stricter AutoOil package in 1998 (Friedrich, Tappe et al. 2000) and considered fundamental for the high political profile achieved by the group in the 1990s.

When the United Kingdom took over the Presidency in January 1998, the AutoOil agreement was in its final conciliation phase. Prime Minister Tony Blair and Foreign Secretary Robin Cook expressed a firm ambition of bringing “environmental considerations into the centre of the EU's decision-making process, not keeping them as an afterthought” (BBC News, 7th January 1998). The green agenda included climate change, following the momentum of the Kyoto Protocol in 1997, as well as genetically modified organisms (GMOs) and chemicals. The Amsterdam Treaty, signed in 1997, provided further tools: articles 174 to 176 of the European

Community Treaty established the precautionary principle and preventive action as basis for environmental action and, among the tasks of the Community listed in Article 2, is “a high level of protection and improvement of the quality of the environment”. This legal basis was a key demands made by the G4 in its first common paper in 1990.

When REACH started to be drafted, therefore, the co-decision had been expanded and the Parliament had just achieved a substantial green victory over the Council in the Auto Oil package. Environment protection had become part of the

24 _{Besides the groups cited before, the G10 includes BirdLife International, CEE Bankwatch, Climate}

Action Network Europe, Health and Environment Alliance, European Federation for Transport and Environment, and International Friends of Nature

Treaty and NGOs had established a status of close collaborators inside the

Commission, not only in DG Environment but also in other areas such as trade. Ken Collins stepped down from the European Parliament and the Environment Committee in 1999, leaving behind a strong Environment and Consumer Protection Committee. Moreover, the British presidency aims facilitated the job of Michael Meacher, UK Minister of Environment, in calling the Chester meeting that would kick start the review of the chemical legislation (Lind 2004).

Changes in the balance of decision making power and political agenda show some of the evolving characteristics that allow or constrain agency. At this particular point in time, access and agenda setting favoured NGOs: environment issues were a priority, with the Commission working closely with environmental groups. While the Council had not been traditionally an ally of the greens, something that would become clear during the late stages of the power struggle between Council and Parliament, the combination of British top politicians was fortuitous. Here, the use of multilevel resources was crucial. Meacher, considered an ally to environmental causes in the UK, home to the two most active organisations involved in REACH (WWF and FoE), joined forces with Scandinavian ministers, backed up by their own regional NGOs that are part of the European network, to push the review. The momentum was kept with the choice of Swedish politician Margot Wallström as Environment

Commissioner in 1999.

Thus, the first phase of the process, the drafting of the White Paper, despite DG Enterprise’s participation, was subjected to strong NGO influence. While corporations and chemical industry collective bodies were officially involved in the formal discussions, the release of the first draft was confessedly the first moment they realised the extent of the challenge ahead. “We knew that something was being prepared. We had conferences here in Brussels with the Commission, member states, industries, NGOs. Our understanding was that it had to be something that was flexible enough, not too difficult or too expensive and that was our idea at the beginning. When we saw the White Paper, it was really demanding a lot”25, said the coordinator of the industry lobbying.

In co-decision, more problems and opportunities for access and multilevel institutional coordination appeared, with Parliament and Council seen as much more

resource intensive lobbying areas (Long and Lorinczi 2009) and, therefore, favouring financially and/or politically powerful groups. According to a NGO campaign

coordinator, direct access to the Council is virtually blocked for non-governmental groups: “In some points we did not have a chance. The industry is much more able to book meetings with senior officials and ministers at the Council while us, as NGOs, get to meet them once a year and for a short period”26. Both newcomers and European incumbents went the national route to government representatives, with the industry having a full time lobbyist responsible for countries permanent representation in Brussels. International players, particularly important trade partners like the United States, had clearly more access to the Council than to the Parliament.

With 785 MEPs, the European Parliament also required an intensive approach, which is one of the reasons the industry had its top lobbyist stationary there during the whole process of co-decision. NGOs had good access and working relationship with the Environment Committee, to which the rapporteur was linked, but three

committees had joint responsibility to propose amendments. The discussion was polarised between the Greens and Socialists, who wanted a stronger REACH

supported by the majority of the Liberals, and the Christian Democrats and part of the Liberals in favour of less regulation. For the greens, the major problem in Parliament was the division between environmental and animal rights supporters. “The greens were almost a block in the second reading. But the remaining animal rights faction, particularly with the UK bias, broke this. From our point of view (DG Environment), the animal welfare line did harm the legislation”27.

The first part of this chapter described and discussed actors and structures involved in REACH, providing an overall picture of a highly complex episode of policy making and lobbying, a snapshot of these interactions at work. From this portrait, it is clear that structures can work in favour or against different players at different stages of the process, therefore impacting outcomes. It is also clear that actors take into consideration these enabling or disabling features when planning their moves. The second half of the chapter will focus on the strategies developed by different players throughout the process, bringing to the analysis the stories of business representation that are the central concern of this thesis.

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Interview 7