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 sewage1
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.
1

The Simulation

The rest of the original proposal can be found on Blackboard under the link 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 Parliament
3. One Member State in favor of the amending proposal of the
Commission
4. One Member State opposing the amending proposal of the
Commission
5. 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).2
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:
o An analysis of your own position, including (but not limited to)
i)
scope;
ii)
legal base;
iii)
subsidiarity / proportionality;
iv)
implementation/application;
2

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.

v)

balance of free movement of services fundamental

social rights;
vi)
preferred alternatives for the proposal.
o 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:
o 13.00-13.10 Introduction: management of multilateral
negotiations in the EU
o 13.10-13.45 Tour du table (maximum 5 minutes speaking
time)
o 13.45-14.40 Negotiations
o 14.40-14.50 Conclusions
o 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.
*.*.*.*.*.*.*