Non-governmental organisation participation in the EU law-making process: Th example of social non-governmental organisations at the commission, parliament and Council

European Law Journal

Volumn 14, Issue 5, 2008, Pages 558-582

  de Jesus Butler, Israel ^a  

^a LANCASTER UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 65249173540     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2008.00430.x     Document Type: Article

References (210)

1. See eg Commission Discussion Paper, 'The Commission and Non-Governmental Organisations, Building Stronger Partnerships', COM (2000) 11 Final, 18/ 1/00. Commission White Paper, 'European Governance' COM (2001) 428 final, 25/7/01
2. Commission Communication, 'Towards a Reinforced Culture of Consultation and Dialogue - General Principles and Minimum Standards for Consultation of Interested Parties by the Commission', COM (2002) 704 final, 11/12/02 (General Principles (2002))
3. Commission Green Paper, 'European Transparency Initiative' COM (2006) 194 final, 3/5/06
4. Commission Communication, 'Follow-up to the Green Paper "European Transparency Initative"' COM (2007) 127 final, 21/3/07
5. Commission Communication, 'European Transparency Initiative: A Framework for relations with interest representatives (Register and Code of Conduct)' COM (2008) 323 final, 27/5/08.
6. Robert Bennett, 'Business Routes of Influence in Brussels: Exploring the Choice of Direct Representation', (1999) 47 Political Studies 240
7. Pieter Bouwen, 'Corporate Lobbying in the European Union: The Logic of Access', (2002) 9 Journal of European Public Policy 365
8. Maria Cowles, 'Non-State Actors and False Dichotomies: Reviewing IR/IPE Approaches to European Integration', (2003) 10 Journal of European Public Policy 102
9. Helen Wallace and Alisdair Yound (eds) Participation and Policy-Making in the European Union (Clarendon, 2003).
10. Cornelia Woll, 'Lobbying in the European Union: From Sui Generis to a Comparative Perspective', (2006) 13 Journal of European Public Policy 456.
11. Andrew Geddes, 'Lobbying for Migrant Inclusion in the European Union: New Opportunities for Transnational Advocacy?', (2000) 7 Journal of European Public Policy 632
12. Andrew Geddes and Virginie Guiradon, 'Britain, France, and EU Anti-Discrimination Policy: The Emergence of an EU Policy Paradigm', (2004) 27 West European Politics 334
13. Sonia Mazey and Jeremy Richardson, Lobbying in the European Community (Oxford University Press, 1993)
14. R. H. Pedler and M. P. C. M. Van Schendelen, Lobbying the European Union Companies, Trade Associations and Issue Groups (Ashgate, 1994)
15. Bert Pijnenburg, 'EU Lobbying by ad hoc Coalitions: An Exploratory Case Study', (1998) 5 Journal of European Public Policy 303.
16. Robert Geyer, 'Can European Union (EU) Social NGOs Co-operate to Promote EU Social Policy?', (2001) 30 Journal of Social Policy 477
17. Alex Warleigh, 'The Hustle: Citizenship Practice, NGOs and "Policy Coalitions" in the European Union - the Cases of Auto Oil, Drinking Water and Unit Pricing', (2000) 7 Journal of European Public Policy 229.
18. Kenneth Armstrong, 'Rediscovering Civil Society: The European Union and the White Paper on Governance', (2002) 8 European Law Journal 102
19. Olivier De Schutter, 'Europe in Search of its Civil Society', (2002) 8 European Law Journal 198.
20. See also contributions appearing in a 'Special Issue: Law, Civil Society and Transnational Economic Governance', (2003) 9(4) European Law Journal.
21. Two notable exceptions are: Stijn Smismans, Law, Legitimacy, and European Governance (Oxford University Press, 2004)
22. Stijn Smismans (ed), Civil Society and Legitimate European Governance (Elgar, 2006).
23. Isabelle Chopin, 'The Starting Line Group: A Harmonised Approach to Fight Racism and to Promote Equal Treatment', (1999) 1 European Journal of Migration and Law 111
24. Isabelle Chopin, 'Possible Harmonisation of Anti-Discrimination Legislation in the European Union: European and Non- Governmental Proposals', (2000) 2 European Journal of Migration Law 413
25. Genevieve Gencianos, 'International Civil Society Cooperation on Migrants' Rights: Perspectives from an NGO Network', (2004) 6 European Journal of Migration 147
26. Jan Niessen, 'The Amsterdam Treaty and NGO Responses', (2000) 2 European Journal of Migration and Law 203
27. Jan Niessen, 'Making the Law Work. The Enforcement and Implementation of Anti-Discrimination Legislation', (2003) 5 European Journal of Migration and Law 249
28. Jan Niessesn and Yongmi Schibel, 'Promoting Debates on European Migration Policies', (2003) 4 European Journal of Law and Migration 469
29. Adam Tyson, 'Negotiation of the European Community Directive on Racial Discrimination', (2001) 3 European Journal of Migration and Law 199.
30. See the range of pieces in nn 2-4 supra.
31. See for example the different sectors brought together under the NGO 'Civil Society Contact Group': Available at http://www.act4europe.org/ code/en/default.asp (accessed 25 June 2008).
32. It been estimated that there are over 10,000 lobbyists in Brussels representing around 1,400 firms. See Dan Bilefsky, 'Lobbying Brussels: It's getting crowded', International Herald Tribune, 29 October 2005, available at http://www.iht.com/articles/2005/10/28/business/wblobby.php (accessed 25 June 2008).
33. While a popularly cited figure of 15,000 business lobbyists is sometimes cited, Greenwood suggests a substantially smaller number (see Speech of Sim Kallas, 'The Need for a European Transparency Initative', 5. Delivered at Nottingham, March 2005, SPEECH/05/105, available at http://ec.europa.eu/commission_barroso/kallas/transparency_en.htm#6 (accessed 25 June 2008)
34. Justin Greenwood, Interest Representation in the European Union (Palgrave, 2nd edition, 2007), 9ff).
35. See also WolfgangWessels, 'The Growth and Differentiation of Multi-Level Networks: A Corporatist Mega-Bureaucracy or an Open City?' in Wallace and Young (2003), op cit n 2 supra), 17
36. Rory Watson and Michael Shakleton, 'Organized Interests and Lobbying in the EU', in Elizabeth Bomberg and Alexander Stubb, The European Union: How Does it Work? (Oxford University Press, 2003), 88, 89.
37. Apart from the literature in the field of political science mentioned above, a brief overview can be found at Watson and Shakleton (2003), op cit n 9 supra, at 88. It should be noted that the examples of participation in law-making in this article do not make reference to the various 'soft-law' initiatives that NGOs may be involved in.
38. Hermann Rechenberg, 'Non-governmental Organisations', in Rudolf Bernhardt (ed), Encyclopaedia of Public International Law, Vol III (Max Planck, 1997), 612.
39. The European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (ETS 124, 24/4/86), rather than seeking to determine which entities may be regarded as NGOs aims to ensure that entities legally recognised as NGOs in one state party can enjoy the same status in another state party. As such the Convention and its Explanatory Report (Explanatory Report of the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, available at http://conventions.coe.int/ treaty/en/Reports/html/124.htm (accessed 25 June 2008) establish some limits on what can qualify as an NGO for the purposes of the instrument, and these are referred to when appropriate.
40. The European Convention excludes 'commercial companies or other bodies which exist to distribute financial benefits among their members' (Explanatory Report, ibid, at para 8).
41. However, some writers include the profit-making sector: Rechenberg (1997), ibid, at 612
42. Lung-Chu Chen, An Introduction toContemporary International Law, A Policy Oriented Approach (Yale University Press, 1989), 73.
43. Rechenberg (1997), op cit n 11 supra, at 612
44. Steve Charnovitz, 'Two Centuries of Participation: NGOs and International Governance' (1996) 18 Michigan Journal of International Law 183, 187
45. Explanatory Report, op cit n 11 supra, at para 6.
46. Rechenberg (1997), op cit n 11 supra, at 612
47. and Charnovitz (1996), ibid, at 187 include them among NGOs.
48. The UN Panel on Civil Society on Civil Society and UN Relationships (hereafter UN Panel) do not (see Background Paper, 'The Diversity of Actors Within the UN System', available at http://www.un.org/reform/ civilsociety/categories.shtml (accessed 25 June 2008).
49. Jan Scholte, 'Civil Society and Democracy in Global Governance', (2002) 8 Global Governance 281, 284.
50. Similarly Colás writes that the 'conceptual power of the term 'civil society' lies precisely in its reference to an arena of social life differentiated from the state while simultaneously revealing its complex interaction with the state': Alejandro Colás, International Civil Society, Social Movements in World Politics (Polity, 2002), 26.
51. However, Charnovitz (1996) op cit n 13 supra, at 186, refers to international sports associations and organisations as NGOs.
52. '[I]t should be noted that the term "nongovernmental organization" is on the decline. It is criticized as being too negative, that is, as describing NGOs for what they are not': Charnovitz (1996), op cit n 13 supra, at 188
53. Catherine Tinker, 'The Role of Non-State Actors in International Law-Making During the UN Decade of International Law', (1995) 89 ASIL Proceedings 177, 179.
54. Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law, A Feminist Analysis (Manchester University Press, 2000), 90
55. Peter Willets, 'Non-Governmental Organizations', in 'UNESCO Encyclopaedia of Life Support Systems', Article 1.44.3.7, available at http://www.eolss.net;UNPanel,
56. see Background Papers available at http://www.un.org/reform/civilsociety/ relateddocs.shtml (accessed 25 June 2008) and the contributors to Michael Edwards and John Gaventa (eds), Global Citizen Action (Earthscan, 2001).
57. The UN Panel seems to distinguish NGOs from other formal organisations, sorting civil society into six categories (see 'The Diversity of Actors Within the UN System', op cit n 14 supra, at 3): Mass organisations, (representing the interests of particular segments of the population, such as women, youth, peasants) trades-related organisations (representing the interests of a profession or employees), faith-based organisations, academe (communities of scholars, researchers and academics), public benefit NGOs, and social movements and campaign networks ('mass and loose associations of people' who work together on the basis of a common experience, for example the feminist movement or landless peasants movement). However, this approach is not generally found among other authors.
58. For more information on social movements and campaign networks see Margaret Keck, and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, 1998). It is doubtful whether it is correct to include all elements of such networks as part of civil society since they can often include government bodies and inter-governmental organisations.
59. This also largely matches the Commission's understanding of what constitutes an NGO. See Commission Discussion Paper (2000), op cit n 1 supra, at 3-4. This particular definition might more accurately fit with the term 'Transnational Social Movement Organisation' used in sociology and increasingly in international relations literature. It operates as a term for the sub-category of (international or internationally oriented) NGOs which work towards enacting political change based on values of what is morally right or wrong. However, this term is not adopted here because of its unfamiliarity to international lawyers. Smith describes TSMOs' principal areas of interest as: Human rights, environment, peace, women's rights, development/empowerment, global justice, peace, self-determination, ethnic unity, as well as right wing organisations.
60. Jackie Smith, 'Exploring Connections Between Global Integration and Political Mobilization', (2004) 10 Journal of World-Systems Research 265, 268. Colás (2002), op cit n 15 supra, at 67 defines a social movement as 'a sustained and purposeful collective mobilization by an identifiable, self-organized group in confrontation with specific power structures, and in the pursuit of socio-economic and political change.'
61. Commission Discussion Paper (2000), op cit n 1 supra, at 12. The closest thing to this can be found in Articles 138 and 139 ECT which provide for dialogue and consultation between the EU and employers and employees.
62. This provision allows for the role to be more expansive: 'These attendance arrangements may be supplemented to include other modalities of participation.'
63. The Commission on Human Rights has now been replaced by the Human Rights Council, which has been established as a subsidiary body of the General Assembly rather than the Economic and Social Council. However, the arrangements regarding consultation of NGOs are to remain in place. See United Nations General Assembly Resolution 60/251, 3/4/06, para 11.
64. For an account of some of the achievements of NGOs in the UN human rights protection mechanisms see Ann-Marie Clark, Diplomacy of Conscience, Amnesty International and Changing Human Rights Norms (Princeton University Press, 2001).
65. Secretary General's Panel (2003a), 2. Around 3,000 NGOs were participated in the CHR's 2004 Session, UN Press Release, 'Address of Bertrand G. Ramcharan Acting High Commissioner for Human Rights at the Closing of the 60th Session of the Commission on Human Rights', available at http://www.unhchr.ch/huricane/huricane.nsf/view01/ 79FF167E9EC07F34C1256E82002EA41A?opendocument (accessed 25 June 2008).
66. For instance, NGOs played significant roles in the creation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (1465 UNTS 85) and the UN Convention on the Rights of the Child, 1989 (1577 UNTS 3).
67. See eg Herman Danelius and Hans Burgers, The United Nations Convention against Torture, A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff, 1988)
68. Cynthia Cohen, 'The Role of Nongovernmental Organizations in the Drafting of the Convention on the Rights of the Child', (1990) 12 Human Rights Quarterly 137.
69. The UN CHR has adopted the 'Open Ended Working Group' as its forum of choice for negotiating the texts of human rights treaties. These groups are 'open' in the sense that any state member of the CHR may participate, while other states and IGOs may send 'observers' who have the right to take the floor. NGOs with ECOSOC consultative status also have an automatic right to attend as 'observers' (and the chair may permit other NGOs to participate also) although they have no absolute right to speak. See generally Israel de Jesús Butler, Unravelling Sovereignty: Human Rights actors and the structure of international law (Intersentia, 2007), 153-154, 168-189.
70. Consolidated Version of the Treaty on European Union, as amended by the Treaty of Lisbon ([2008] OJ C115/13), Article 11(2): 'The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.' This replicated Article I-47(2) of the Constitutional Treaty ([2004] OJ C310/01).
71. EC Treaty Articles 40, 44, 52 (free movement); 71, 75 (transport); 93, 94, 95 (harmonisation in relation to taxes and the creation of the single market); 128, 129 (employment); 137, 140, 141, 143 (social provisions); 148 (European Social Fund); 149, 150 (education and vocational training); 152 (public health); 153 (consumer protection); 156, 157 (trans-European networks); 159, 161, 162 (economic and social cohesion); 166, 172 (research and development); 175 (environment).
72. Protocol of Cooperation Between the European Commissison and the European Economic and Social Committee, 2005, CESE 1391/2005, FR/HR/CAT/ hn, para 12.
73. EESC booklet, 'The EESC: A Bridge Between Europe and Organised Civil Society', 10. Available at http://www.eesc.europa.eu/organisation/how/ index_en.asp (accessed 25 June 2008).
74. EESC Rules of Procedure (2006), Rule 27, available at http://www.eesc.europa.eu/organisation/rules/index_en.asp (accessed 25 June 2008).
75. For a list of EESC members according to group see http://eescmembers.eesc.europa.eu/eescmembers.aspx?culture=en (accessed 25 June 2008).
76. Diedre Curtin, 'Private Interest Representation or Civil Society Deliberation? A Contemporary Dilemma for European Union Governance', (2003) 12 Social and Legal Studies 55, 63.
77. See EESC website http://www.eesc.europa.eu/groups/3/index_en.asp (accessed 25 June 2008).
78. EESC, Final Report of the ad hoc group on Structured Cooperation with European Civil Society Organisations and Networks, CESE 1498/2003 fin, FR/CD/ET/ht, 17/2/04, 1 (hereafter EESC Report (2004)).
79. See Charlie Jeffrey 'Social and Regional Interests - The Economic and Social committee and Committee of the Regions', in John Peterson and Michael Shackleton (eds) The Institutions of the European Union (Oxford University Press, 2006), 312, 318.
80. Similarly Smismans: 'The EESC can hardly be called respresentative of the socio-occupational categories of today's European society. Representatives of, for instance, the artistic world, the media, SMEs, cooperatives, foundations, chariable associations, the diabled, the unemployed, women's organizations (which are all in one way or another (also) sociooccupational categories) are not represented or are underrepresented in the EESC': Smismans (2004), op cit n 5 supra, at 149-150.
81. See EESC Rules of Procedure (n 29, supra), Rule 50(5) and Rules 51(7) and 54 (for the limited ability to reflect divergent views to the Opinion).
82. Opinion of the Economic and Social Committee 'Organised civil society and European governance: The Committee's contribution to the drafting of the White Paper', CES 535/2001 25/4/01, see Point 2.2.1.
83. As stated in the operating rules, the Liaison Group is made up of 10 members of the EESC and of representatives of the various sectors of organised civil society at European level based on existing organisations and networks within these sectors. The EESC President and the Co-chair of the Liaison Group decide on any change to the membership (with the approval of all members). At present 14 sectors are represented in the Liaison Group. The EESC states that the Liaison Group was an attempt to 'remedy - or at least mitigate' the 'shortcomings' caused by its limited membership. See EESC Report (2004), op cit n 33 supra, at 1.
84. See EESC, 'Representatives of the Various Sectors of Organised Civil Society at European level in the Liaison Group, Members and Alternates', available at http://www.eesc.europa.eu/sco/group/documents/index_en.asp (accessed 25 June 2008).
85. Between its inaugural meeting in September 2004 and June 2008 the group had met 17 times. It would appear that although there are no publicised formal criteria for membership of the group, the EESC is conscious of the need for representativeness, as expressed in its own-initiative opinion 'The Representativeness of European Civil Society Organisations in Civil Dialogue', SC/023, 14/2/06.
86. See Opinion on the Proposal for a Council Regulation Amending Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation Applicable to the General Budget of the European Communities, ECO/170, 26/10/05
87. 'Report by Liaison Group' in EESC, Summary Report for the European Council: 'Implementation of the Lisbon Strategy', 23-24 March 2006, CESE 1468/2005 rev. FR-EN-ES-PL/HR/NT/ET/nm, 110.
88. Not to say the weight given to its Opinions by the other institutions. There is a remarked-upon tendency of the Council and Commission to take little notice of EESC opinions. Jeffrey (2006), op cit n 34 supra, at 322.
89. Smismans (2004), op cit n 5 supra 169 notes that the impact of EESC opinions may be limited in that they do not tend to propose amendments to Commission proposals on a detailed article-by-article basis. He also points out that even if the EESC opinion merely confirms the Commission's proposal or does not lead to changes in the text it cannot necessarily be inferred that the opinion has been ignored. According to a member of the EESC Secretariat interviewed by the author this trend appeared to be changing.
90. For instance the EESC has been consulted by both the Commission and Parliament regarding the so-called 'reflection period' that followed the rejection of the Constitutional Treaty by France and the Netherlands (see Commission Communication COM (2005) 494 final, 13/10/05
91. EESC Opinion CESE 1249/2005, 10/11/05
92. EESC Opinion CESE 1499/2005, 19/12/05), and on the White Paper on a European Communication Policy (Commission Communication COM (2006) 35 final, 1/2/06
93. EESC Opinion CESE 972/2006, 11/7/06).
94. The EESC notes that at European level ... many civil society players, networks, associations and in particular, non-governmental organisations ... are emerging and operating effectively, but are not formally represented on the [EESC] ... Many of them have their own channels of direct information and communication with the European institutions. These include ... direct European NGO consultation procedures put in place by the Commission': EESC Report (2004), op cit n 33 supra, at 1.
95. See also Wessels (2003), op cit n 9 supra, at 34.
96. [1997] OJ C340/105.
97. [2003] OJ C321/1 ('conduct the widest possible consultations', para 26).
98. Commission Report, 'Better Law Making 2004, COM (2005) 98 final, 21/3/05.
99. Better Law Making 2004, ibid, at 3
100. General Principles (2002), op cit n 1 supra.
101. General Principles (2002), ibid, at 14-22.
102. The Commission notes that 'these standards apply only to (i) major policy proposals on which an impact assessment is required and (ii) Green Papers': See Commission Green Paper, (2006), op cit n 1 supra, at 12.
103. For instance, there appears to have been no public consultation regarding the Regulation on the Rights of Disabled Air Passengers or the Services Directive, both of which provoked strong reactions from NGOs (see further below). For a list of public consultations in DG Transport see http://www.ec.europa.eu/transport/air/consultation/index_en.htm (accessed 25 June 2008)
104. for DG Internal Market see http://www.ec.europa.eu/internal_market/ consultations/index_en.htm (accessed 25 June 2008).
105. This is not to say that that a lack of consultation cannot result in the annulment of a measure by the ECJ. A lack of proper consultation may result in a legislative measure failing to contain sufficient reasons as required by Article 235 of the ECT. See for instance Case 5/67, Beus [1968] ECR 83.
106. Smismans (2004), op cit n 5 supra, at 454 finds it unlikely that the ECJ would review legislation on the grounds that the minimum standards were violated 'given the Court's general reluctance of judicial review on functional participation'.
107. This appears to be confirmed by Harlow in his interpretation of Case T-135/96, UEAPME [1998] ECR II-2335 before the Court of First Instance: Carol Harlow, 'Civil Society Organisations and participatory administration: A challenge to administrative law?', in Smismans, (2006) op cit n 5 supra, at 133-134.
108. General Principles (2002), op cit n 1 supra, at 10.
109. For the work of the Social Platform relating to services of general interest and social and health services, including archived documents relating to its campaign on the Services Directive see http://www.socialplatform.org/Policy.asp?DocID=8261 (accessed 25 June 2008).
110. Articles 16, 17 of the original Proposal for a Directive of the European Parliament and of the Council on Services in the Internal Market, COM (2004) 2 final/3, 5/3/04.
111. See Social Platform 'Analysis of the Commission's proposal for a directive on services in the Internal Market' at 19ff, available on http://www.socialplatform.org/Module/FileLib/ 04-06Services_ExpertAnalysis.pdf (accessed 25 June 2008).
112. See the original proposal, op cit n 50 supra. It may be telling that the 60-page impact assessment of the Commission contains the words 'social services' only three times. See Commission Working Paper, 'Extended Impact Assessment for Proposal for a Directive on Services in the Internal Market', SEC (2004) 21, 13/1/04.
113. Despite the fact that the Secretariat-General of the Commission was engaged in consultation with the same NGOs over establishing a framework directive relation to 'Services of a General Interest'. See Commission Staff Working Paper, 'Report on the Public Consultation on the green Paper on Services of General Interest', SEC (2004) 326, 15/3/04.
114. According to an interviewee DG Internal Market was more accustomed to working with business lobbyists.
115. For the Parliament's amendments see Position of the European Parliament adopted at the first reading, EP-PE_TC1-COD(2004)0001, 16/2/06. For the Commission's Amended Proposal (where the 'country of origin rule' was removed) see COM (2006) 160 final.
116. See eg Report of a Seminar held for MEPs in the European Parliament, organised by the Social Platform and the Green/EFA Group, 'Social Services, Quality in Services and the Services Directive: What Options for Revising the Draft?', available at http://www.socialplatform.org/ module/FileLib/EPServicesDirectiveSeminar_Report.pdf (accessed 25 June 2008). On activities of NGOs within the EP see further below.
117. Ibid.
118. General Principles (2002), op cit n 1 supra, at 17.
119. COM (2001) 428 final, 25/7/01, 17.
120. That is, not the Consultative body with which it meets twice yearly for structured dialogue.
121. This information was previously available on the CONECCS website which is no longer active: http://ec.europa.eu/civil_society/coneccs/ listedomaine2.cfm?CL=en (accessed 22 September 2006).
122. http://ec.europa.eu/civil_society/coneccs/index.html (accessed 25 June 2008).
123. COM (2008) 323 final, n 1 supra, at 3.
124. COM (2006) 194 final, n 1 supra, at 2. The Commission considers these two issues to be interrelated.
125. Some interviewees cited a figure of 80%-90% and many felt that they would not be able to run without Commission financial support, eg The Annual Report of EDF 2004-2005 (available on request from the EDF) indicates that of a total income of €1,106,000, €868,000 comes from the Commission, at 53.
126. See Commission Discussion Paper (2000), op cit n 1 supra, at 13-15.
127. See also 2006 General Budget, Vol 4 (Section 3), Expenditure, Title 04-Employment and social affairs, Article 04 04 04-Measures combating and preventing discrimination and Article 04 04 09-Support for the running costs of the Platform of European Social Non-governmental Organisations (available at http://www.eurlex.europa.eu/budget/data/ D2006_VOL4/EN/nmc-titleN118C7/nmc-chapterN12197/articles/index.html (accessed 25 June 2008) and Vol 4 (Section 3),
128. Expenditure, Title 15 - Education and Culture, Article 6 - Dialogue with Citizens, Item 15 06 01 01 - Measures in favour of civil society (available at http://www.eur-lex.europa.eu/budget/data/D2006_VOL4/EN/ nmc-titleN16E0D/nmc-chapterN1777F/articles/index.html#N17787).
129. See 2006 General Budget, Article 04 04 09, ibid, at 64.
130. See 2006 General Budget, Article 04 04 04, ibid, at 64
131. Commission Discussion Paper (2000), op cit n 1 supra, at 6.
132. See 2006 General Budget, Article 04 04 04, op cit n 67 supra, at 64
133. Commission Discussion Paper (2000), op cit n 1 supra, at 6.
134. See EDF Press Release, 'Europe's First Comprehensive Disability Rights Law Unveiled', March 2003, available at http://www.edf-feph.org/Papers/ press_releases/pressrelease12.htm (accessed 17 July 2006)
135. European Commission, DG Employment and Social Affairs, Conference Report, 'Civil Dialogue and Social Policy in an Enlarged European Union', Budapest, 23-24 June 2003, 15 (available at http://ec.europa.eu/ employment_social/fundamental_rights/pdf/pubst/civildia03_en.pdf (accessed 25 June 2008)
136. European Blind Union, 'Disability Specific Directive', available at http://www.euroblind.org/fichiersGB/2005dsd.htm#epreso (accessed 25 June 2008).
137. For the text of the EDF proposal see http://cms.horus.be/files/99909/ MediaArchive/Top5Campaigns/EDFdemands_Article13directive_June%202008.pdf (accessed 25 June 2008). Currently discrimination on grounds of disability is prohibited by EC Law within the more limited context of the Framework Employment Directive (2000/78/EC, [2000] OJ L303/16).
138. As indicated by various interviewees. Commission Communication, 'Commission Legislative and Work Programme 2008' COM (2007) 640 final, 23/10/07, at 25.
139. Disability World, 'Ombudsman Promises European Disability Directive', available at http://www.disabilityworld.org/11-12_03/news/edf.shtml (accessed 17 July 2006).
140. Chopin, (1999), op cit n 6 supra, at 111, then Director of the SLG, described it as 'an informal network of nearly 400 non-governmental organisations, semi-official organisations, trade unions, churches, independent experts and academics in the European Union whose principal aim is to promote legal measures to combat racism and xenophobia at the European level.'
141. See eg Geddes, op cit n 3 supra
142. Chopin, (1999), op cit n 6 supra, at 111
143. Chopin, (2000), op cit n 6 supra, at 413.
144. Mark Bell, 'Meeting the Challenge? A Comparison Between the EU Racial Equality Directive and the Starting Line', in Isabelle Chopin and Jan Niessen (eds), The Starting Line and the Incorporation of the Racial Equality Directive into the National Laws of the EU Member States and Accession States (Commission for Racial Equality and Migration Policy Group, Belmont Press, 2001), 22-23
145. Chopin (1999), op cit n 6 supra, at 111, 115
146. Niessen (2000), op cit n 6 supra, at 210.
147. Chopin (1999), op cit n 6 supra, at 116. This was the consensus view among interviewees.
148. Chopin (1999), op cit n 6 supra, at 121ff
149. Chopin (2000), op cit n 6 supra, at 413
150. Bell (2001), op cit n 75 supra, at 23.
151. Patrick Yu and Isabelle Chopin 'Introduction', in Chopin and Niessen (2001), op cit n 72 supra, at 5, 6.
152. Similarly, an interviewee indicated that the Commission's Proposal for a Regulation concerning the rights of disabled persons and persons with reduced mobility when travelling by air included (16/2/05, COM (2005) 47 final) provisions based on consultations with the European Disability Forum, notably the stipulation that the cost of assistance provided to disabled passengers be spread equally over all passengers.
153. See preambular para 7 of the Proposal.
154. This is not to say that the Commission is without inspiration of its own. For instance, the Commission included a requirement for Member States to include harassment on grounds of racial or ethnic origin within the prohibition on discrimination where the SLG's proposal made no such provision. See Bell (2001), op cit n 75 supra, at 24, 26
155. Chopin (2000), op cit n 6 supra, at 420.
156. Directive 2000/43/EC, [2000] OJ L180/22.
157. For instance the material scope of the final Directive includes discrimination in the provision of housing, where this did feature in the SLG's proposal but not that of the Commission. See Chopin (2000), op cit n 6 supra, at 422, 428. The final version of the Directive also included 'instruction to discriminate' as a form of prohibited discrimination where this has not featured in the Commission's proposal but did feature in the SLG's proposal.
158. See Chopin (2000), op cit n 6 supra, at 427
159. Bell (2001), op cit n 75 supra, at 28.
160. Similarly, see the alterations made to the proposal for the 'Services' Directive by the Commission (discussed below in relation to the EP).
161. For the text of the proposal see COM (2005) 280 final, 30/6/05, 'Proposal for a Council Decision empowering the European Union Agency for Fundamental Rights to pursue its activities in areas referred to in Title VI of the Treaty on European Union.' On the consultation process during 2004 and 2005 see http://ec.europa.eu/justice_home/news/ consulting_public/news_consulting_public_en.htm (accessed 25 June 2008).
162. Interestingly from the point of view of the issue question of 'institutionalising' NGO participation within the EU, one of the provisions included in the proposal (at the insistence of NGOs) was that the FRA should dispose of a 'Forum' composed of NGOs 'responsible for fundamental rights' (though this has been very controversial within Council negotiations). See Article 14 of the Commission's Proposal.
163. Geddes (2000), op cit n 3 supra, at 637.
164. Geddes (2000), op cit n 3 supra, at 637.
165. Harlow notes that the Commission is predisposed to supporting the participation of NGOs: 'it served as a device both for building a European demos and, perhaps more important, for legitimating the Commission's autonomous and free-floating policy-making functions': Carol Harlow, 'Civil Society Organisations and participatory administration: A challenge to administrative law?', in Smismans, (2006), op cit n 5 supra, at 115, 116.
166. Or as Commissioner Kallas (responsible for the transparency initiative) put it 'the Commission is paying lobbies, in order to be lobbied'. Kallas (2005), op cit n 9 supra, at 9.
167. Greenwood appears to support this view, noting that 'If business interests have a naturally privileged position in policy-making as generators of resources which governments need in order to survive, then political institutions need to be active in creating a level playing field for other types of interests': Greenwood (2007), op cit n 9 supra, at 2-3.
168. An advocacy group might either obtain a pass to the EP allowing access to MEPs or they might be given occasional visitor passes via the MEP with whom they are meeting. See EP Rules of Procedure (16th edn, July 2006), available at http://www.europarl.europa.eu/omk/sipade3?PUBREF=-// EP//NONSGML+RULES-EP+20060703+0+DOC+PDF+V0//EN), Rule 9(4), and Annex IX.
169. The most thorough account appears to be in Chapter 10 of Richard Corbett, Francis Jacobs andMichael Shakleton, The European Parliament (John Harper, 2005).
170. EP documentation relating to their existence and regulation is hard to come by. Some Intergroups have websites detailing their activities, but these pages tend to be hosted by the secretariat or coordinator of the given Intergroup.
171. They should therefore be distinguished from the Parliamentary Committees, which are official organs of the EP. They should also not be confused with the political groups (eg the Socialist Group or the European People's Party and European Democrats).
172. Rules Governing the Establishment of Intergroups, Decision of the Conference of Presidents of the EP of 16/12/99, consolidated on 3/5/04, EP Doc No PE 339.492/BUR (hereafter Intergroup rules), Articles 1, 2, 3.
173. Or rather an unregistered 'Intergroup' may be considered less formally as an 'interest group'.
174. Intergroup rules, op cit n 92 supra, at 87, Article 4.
175. Intergroup rules, op cit n 92 supra, at 87, Article 9.
176. It was also noted by interviewees that MEPs attending the plenary session might not be able to afford much more than an hour.
177. Certain Intergroups are managed from within, eg the Lesbian and Gay Intergroup and the Urban Housing Intergroup, see http://www.lgbt-ep.eu/ plugins/content.php?cat.4 and available at http://feantsa.horus.be/code/ en/pg.asp?Page=601 (accessed 25 June 2008).
178. Coordinators may also receive some help from the assistants of MEPs in the bureau in organising events. 99 This can be particularly interesting where the relevant NGO is funded principally by the Commission. Running an Intergroup would not normally be within the remit of activities that such NGOs would be expected to perform by the Commission. It seems that the practice is on one hand 'tolerated' by the Commission and on the other, justified by NGOs with reference to the income that they receive from sources other than the Commission. At the same time, considering that a Commission representative is very often invited to attend Intergroup meetings (especially where a particular Commission proposal for legislation is under discussion) in order to explain its position and take account of views, it would be hard to understand if the Commission considered this activity negatively.
179. Committee Rapporteurs are responsible for drafting the report of the Parliamentary Committee considering a Commission Proposal, including any amendments. The report is then adopted by the Committee and later by the EP.
180. EDF, 'EDF Response to the Proposal for a Regulation Guaranteeing the Rights of Persons with Reduced Mobility Travelling by Air', DOC EDF 05/ 06 EN, April 2005 (EDF Response Paper) (available on request from the EDF secretariat).
181. Report of the Committee on Transport and Tourism on the proposal for a regulation concerning the rights of persons with reduced mobility when travelling by air, 27/10/05, A6-0317/2005.
182. Regulation 1107/2006 [2006] OJ L204/1.
183. The proposal was entitled Regulation 'concerning the rights of persons with reduced mobility when travelling by air', to which EDF objected that this may exclude people with other disabilities that affect the ease with which they travel (such as blindness or deafness). The final title of the adopted regulation reads (largely in line with EDF's suggestion) Regulation 'concerning the rights of disabled persons and persons with reduced mobility ...': EDF Response Paper (2005), op cit n 101 supra, at 4-5.
184. See EDF Response Paper (2005), op cit n 101 supra, at 4-5.
185. The EP amended the text throughout so that references in the original proposal to 'person with reduced mobility' because 'disabled person and person with reduced mobility'. See Report of the Commission on Transport and Tourism, op cit n 102 supra.
186. See Report of the Committee on Transport and Tourism, op cit n 102 supra, at 18, 19
187. EDF Response Paper (2005), op cit n 101 supra, at 9-10.
188. Disability Intergroup Newsletter, Issue 19, July 2005, 3-5 (available through http://www.edf-feph.org).
189. While these are not binding they may be formally adopted by the EP and forwarded to the other institutions once a majority of MEPs have signed it. See EP's Rules of Procedure, Rule 116.
190. 'MEPs Take a Stand Against Racism in Football', ENAR Press Release, 14/3/ 06, available at http://cms.horus.be/files/99935/MediaArchive/pdfpress/ 2006-03-14.pdf (accessed 25 June 2008)
191. 'MEPs Push for Tough Sanctions Against Racism in Football', EP Press Release, 2/12/05, Ref: 20051201ST003091.
192. 'Written declaration of the European Parliament on tackling racism in football', EP Doc No P6_TAPROV(2006)0080, adopted 14/3/06, and ENAR Press Release (2006), ibid.
193. EP Resoltuion on Racism, Xenophopbia and Anti-Semitism, 2/12/93, PE 177.105, [1993] OJ C342/19
194. EP Resoltuion on Racism, Xenophopbia and Anti-Semitism, 27/10/94, PE 184.353, [1994] OJ C323/154. An interviewee indicated that before Article 13 was inserted into the ECT, the SLG had closer relationships with the EP.
195. Interview with a member of the Council Secretariat via email (17 May 2006) on file with author. This is not to imply that NGOs have any direct access to the Council proper either. Rather this section concentrates on the working groups of the Council as the fora where most legislation is negotiated and elaborated.
196. Hayes-Renshaw notes, 'Insiders estimate that, in some Council configurations, the minsters actively discuss only between 10 and 15 percent of all the items on their agendas': Fiona Hayes-Renshaw, 'The Council of Ministers', in Peterson and Shackleton, op cit n 34 supra, at 60, 67.
197. In support of this view see EvesFouilleux, Jacques deMaillard and Andy Smith, 'Technical or Political? The Working Groups of the EU Council of Ministers', (2005) 12 Journal of European Public Policy 609.
198. Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents. [2001] OJ L145/43.
199. Timetables and agendas of working groups are available through the Council's online register of documents, and would seem to be published on the site in advance of meetings: Available at http://register.consilium.europa.eu/ (accessed 25 June 2008).
200. Interview with a member of the Council Secretariat via email (17 May 2006) on file with author. A member of the NGO Migration Policy Group (telephone interview, 24 March 2006) indicated that occasionally during the campaign for the adoption of the Race Equality Directive (2000/43/EC [2000] OJ L180/22) the 'Starting Line' group of NGOs had some of its documents distributed during Council negotiations.
201. Ibid.
202. Conversely, a report of the Council indicates that while documents are still under negotiation they may be released though with the names of the delegations erased in order to preserve flexibility in negotiations. The average time for release of these documents in 2004 was 9 working days. See Council Annual Report on Access to Documents 2004, 9, 11 (available at http://www.consilium.europa.eu/uedocs/cmsUpload/ new08896.en05INT.pdf (accessed 25 June 2008)).
203. Interview with EDF member. See COM (2004) 492 final, 14/7/04 for the proposal for a Council Regulation laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund. The issue of non-discrimination and accessibility is mentioned at section 2.2 of the explanatory memorandum.
204. Though it is not creation as such. The proposal was to expand the current role of the Monitoring Centre on Racism and Xenophobia. See Presidency Conclusions of Brussels European Council of 12-13/12/03, 5381/ 04, POLGEN 2, 27.
205. European Network Against Racism, 'Austrian Presidency Urged Not to Rush into a Political Compromise that would Jeopardize the Protection of Rights in Europe', 22/3/06, available at http://cms.horus.be/files/ 99935/MediaArchive/pdfpress/2006-03-22.pdf (accessed 25 June 2008).
206. This was the case with SLG during the campaign for the adoption of the Directive on Race Discrimination which visited national ministers in the Member States to present its views as well as using its 400 member coalition to lobby national governments. This was also the case with the EDF campaign relating to the regulation on structural funds, op cit n 114 supra.
207. On the role of NGOs within the former UN Commission on Human Rights, see Israel Butler, Unravelling Sovereignty: Human Rights Actors and the Structure of International Law (Intersentia, 2007), Ch 5.
208. See eg Presidency Conclusions, 17/7/06, 10633/1/06, Rev 1, Concl 2, para 4.
209. Note the wording of the Article 11(2) (emphasis added): 'The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.'
210. See op cit n 1 supra, on Commission documents on its initiative to improve transparency.