Law Making
The process
The Common Agricultural Policy (CAP) of the European Union is a structure that served us well for many years, but started to work against us in the more recent years. One of the problems of CAP nowadays is the effect on biodiversity. Due to agricultural practices encouraged and imposed by CAP a great deal of Europe's biodiversity and ecosystems are in serious danger. So why not just change the current policy then? Not only is CAP one of the most complex policies in the world, it is actually not a policy at all. At EU level CAP is nothing more than a bunch of laws. And once a law is adopted it is extremely difficult and time consuming to change or abolish it`, even when it proves to be damaging to our environment. At the same time EU member states are obliged to implement these laws in national policy. It seems CAP is like an unstoppable freight train that runs straight through our precious biodiversity.
​
The process of CAP law making is almost as complex as CAP itself. Below we made this law making process transparent by describing each phase of the process accompanied by the involved EU institutions and examples of CAP law.
Everyone is responsible
A great deal of EU citizens experience the EU and CAP as overly remote. They see CAP as a policy set from on high in Brussel and inaccessible for the common citizen. But only a quick glance on the CAP lawmaking process of CAP will prove the contrary. The EU institutions responsible for CAP law are all directly or indirectly chosen by EU citizens. E.g. CAP law is explicitly amended and voted on by the directly chosen EU parliament. Furthermore, our national governments implement CAP law into real CAP policy on national level. It is evident that we can’t hide behind the EU and that CAP is the product and responsibility of us all.
Phase 1. CAP law is proposed
In the CAP law making process of the European Union mainly three European institutions are involved. The European Commission, the European Parliament and the Council of the European Union [14].
The European Triangle involved in making EU law
The European Commission has the right of initiative which means the Commission has the job to come up with law proposals. The European Commission is divided in so called departments, chaired by a commissioner. Each department is responsible for a set of political priorities. The department Directorate-General for Agriculture and Rural Development (DG AGRI) develops and carries out CAP. This department contributes in the field of agriculture to the EU commission's political priorities like jobs, energy union and climate.
​
When preparing a CAP law proposal the DG AGRI uses impact assessments, consulting a wide range of experts, interest groups and national governments. These actors are organised in informal expert groups (formal expert groups are set up by the whole European Commission). Expert groups, also known as committees, provide the Commission and the DG AGRI with advice and expertise. Examples of expert groups are the Committee on Agricultural Funds, the Rural Development Committee and the Expert Group on Monitoring and evaluating the CAP which serves as a forum for evaluation experts to exchange experiences, practices and information on CAP related issues [53].
​
Likewise the European Parliament is divided in committees (not to be confused with the expert groups) with their own field of policy [51]. The European Parliament Committee on Agriculture and Rural Development (AGRI) is responsible for the operation and development of the CAP (this Parliament Committee AGRI is not the same as the Commissions Department DG AGRI). Like all other Parliament Committees the AGRI consists of Members of the European Parliament (MEPs), a chair, a bureau and a secretariat. An important member of the AGRI is the rapporteur, he or she presents the reports from the committee to the parliament. A rapporteur can use support from (external) experts [10].
​
The council also has its own committees, like the Special Committee on Agriculture (SCA) and the Committee of Permanent Representatives (COREPER).
Meeting from the Council of the European Union [63]
Phase 2. CAP law is made
Three main types of laws and law proposals can be distinguished: regulations, directives and decisions [26].
​
Regulations are the most strict of all three and apply to every member state on a set date. Regulations have a binding legal force. The European Commission initiates regulations when a harmonized approach is required. This could be for example issues that have cross-border and market implications. To support member states in implementing regulations the European Union provides in committees, implementation regulation and funds. An example of a CAP regulation are the rules for direct payments to farmers (Regulation EU NO 1307/2013).
​
Directives also have binding legal force and apply to all member states, but unlike regulations the directives leave a great deal of freedom to member states in the implementation of the directives. As directives only contain a certain requirement, goal or result each member state is free how to transpose (implement) the directive into their national law. In contrast to regulations a directive has no set date to enter in force but has a transposition period, usually about several years. Because member states are free to implement a directive as they want (as long as the goal set out by the directive is reached within the transposition period) one directive could in theory result into 28 different implementations. An example of a CAP directive is the Birds Directive [50]. This directive require the protection of certain wild bird species in various ways. Member states can form their own national laws to meet these requirements.
​
But what if some issues are not relevant for every member state? In this case the European Commission could initiate a decision. Decisions also have a binding legal force but address only specific cases in specific member states (or companies).
​
​
Phase 3. CAP law is discussed
In order to get CAP law through, both the European Parliament and the Council of the European Union have to agree on the law proposal. This is the process of co-decision. Although the European Commission has the right of initiative, both the European Parliament and the Council of the European Union can make final amendments to the proposal before accepting it [38].
​
​
Phase 4. CAP law is issued and monitored
When a CAP law is accepted by both the European Parliament and the Council of the European Union it enters into force in all (or in case of a decision in one or several) member states. To safeguard the implementation and enforcement of the CAP law again the European Commission comes in. Being the guardian of the treaties the European Commission is entitled with certain powers as the power of investigation (control checks), prevention (recommendations), sanction (fines and penalties) and authorisation (formal infringement procedure) [32]. In the worst case scenario the European Commission can bring a member state to the Court of Justice. The Commission has appointed the DG AGRI to supervise and monitor the CAP law implementation in member states.
​
It is a challenge for member states to implement laws with general binding force. National governments act on the interest of their own economy as they try to avoid that domestic companies get a competitive disadvantage. In practice member states will align the aims of EU legislation with domestic policy priority.
​
Although the European Union can issue directives with binding legal force, member states have the responsibility to adopt those directives in their own national framework to make them work. Here we can identify differences between member states. In case of the Bird Directive all member states must protect the designated bird species, although member states can design different national laws and policy to do so.