by Emilio De Capitani
On March 7 the Commission published on the official journal a list of legislative proposals which it has decided to withdraw. (1) The immediate consequence is that legislative negotiations between the European Parliament and the Council on some of these texts can go no further (even if the co-legislators are still interested in finalizing their work). (2) As it would happen if a referee snatches the ball during a match of football , several parliamentary committees have loudly protested.(3)
The problem was not only that the game abruptly interrupted but also that no one could predict when it would start again (even after the Lisbon Treaty the European Parliament and the Council still lack the power to initiate new legislation and can play their legislative role only by amending, (as a general rule), a Commission legislative proposal.
This bizarre situation dates back to the first phase of the European Communities when the Commission was the only institution which could limit the risk that the members states through the Council could re-nationalise the powers conferred by the Treaties to the Community. Since then the rule has been that “…Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise” ( current art 17 p 2, first phrase TEU) and such a Commission’s monopoly of initiative has been further strengthened by two other elements: Member States can change the Commission proposal only by an unanimous vote and conversely the Commission can amend its own proposals all along the procedure “… As long as the Council has not acted(..)”(art. 294 TFEU). In the real world this means that the Commission has to modify its proposal when it shares a majoritarian position emerges in the Council ( so that unanimity is no more needed). To strengthen even more its power to influence the Council position the Commission has developed (in the silence of the treaties) a legal theory according to which the right of initiative not only cover the right to amend a text but also the rights to withdraw it when the Commission consider that its “power” of legislative initiative risks to be abused by the Council in a way which according to the Brussels’s executive is contrary to the EU interest.
In 2013 the beginning of an interinstitutional “Game of thrones” ..
For decades this has remained a virtual threat until May 8, 2013 when the Commission decided to withdraw its proposal for a Regulation of the European Parliament and of the Council laying down general provisions for macro-financial assistance to third countries. The reason for withdrawing it was rather trivial because the Commission was against the Council and the European Parliament agreement to complete the general provisions with other legislative measures without conferring the implementing power to the Brussel’s executive as originally foreseen by the Commission proposal.
The Commission’s move has been considered abusive by the Council and by several member states which brought a case (Case C-409/13) before the Court of Justice by claiming that :
First, the” withdrawal of the proposal for a regulation constitutes a serious breach of the principle of the distribution of powers laid down in Article 13(2) TEU and the principle of institutional balance” and even if a power of withdrawal could arise from Article 293(2) TFEU, “exercise of that power is not a matter for the Commission’s discretion; nor may that power be exercised in an abusive manner” Furthermore the Council recalled that according to Article 10(1) and (2) TEU EU recognize democratic legitimacy only to the European Parliament and to the Council being the only institutions directly or indirectly elected by the EU citizens (by reminding in other words the Commission that as a rule is the dog who moves the tail and not the reverse..).
Moreover the Council has submitted that the Commission withdrawal also constituted “a breach of the principle of sincere and mutual cooperation under Article 13(2) TEU: (i) the proposal was withdrawn very belatedly; after a great number of tripartite meetings (‘trialogues’) had taken place during the first reading stage, the Commission had nevertheless withdrawn its proposal on the day on which the Parliament and the Council were to initial the agreement which they had reached; and (ii) the Commission had not, before proceeding with the withdrawal, exhausted all the procedural possibilities under the Council’s internal regulations “(NDR such as the Commission asking for a vote as admitted by the Council’s rules of procedure) .
Lastly, the Council has submitted that “the contested withdrawal was in breach of the duty under the second paragraph of Article 296 TFEU to state the reasons on which that act of withdrawal was based. According to the Council, the Commission did not provide any explanation for its decision to withdraw; nor did it publish that decision.”
The case has not yet been decided by the Court but the Opinion of the Advocate General has been recently published and is quite frankly astonishing as it does not take in any account the new balance of power arising from the entry into force of the Lisbon Treaty and of the Charter . In fact the AG still consider that the Commission remain the only institution which can interpret what is good or bad for the EU and its citizens.
More than twenty years after the entry into force of the co-decision procedure and after more than 1.500 legislative acts agreed by the Council and the Parliament and several cases where only the two co-legislators (and not the Commission) have been brought before the Court of Justice (see the case of the Directive on data retention) it is quite surprising that the Commission continue to consider himself as the “Deus of machina” which can decide for the life or death of EU legislation.
Regrettably the faint-hearted European Parliament has not joined the Council in this case even if it was in an even stronger position of the Council (because art 293 of the Treaty does not dare to submit also the EP to the Commission “guardianship”).
Let’s now see which will be on April 14th the reaction of the Court . In the meantime a new episode of the interinstitutional “game of thrones” is approaching. This time is on the thorny issue of the revision of the interinstitutional mutual understanding (!?) on “delegated powers” but this will be debated in a future post.
(2) According to European Parliament work in progress data the following legislative procedures will be affected.
PROPOSALS CURRENTLY NEGOTIATED DURING THE EP FIRST READING:
Reduction of national emissions of certain atmospheric pollutants and amending Directive 2003/35/EC;EC JUSTIFICATION : To be modified as part of the legislative follow-up to the 2030 Energy and Climate Package.
Access of third-country goods and services to the Union¨s internal market in public procurement and procedures supporting negotiations on access of Union goods and services to the public procurement markets of third countries. EC JUSTIFICATION:Proposal to be amended in line with the priorities of the new Commission in order to simplify the procedures, shortening timelines of investigations and reducing the number of actors in implementation.
Aid scheme for the supply of fruit and vegetables, bananas and milk in the educational establishments. EC JUSTIFICATION: The whole scheme will be evaluated for subsidiarity, proportionality and better regulation reasons as part of the CAP simplification. Pending this the Commission recommends to the colegislators that work on the amending proposal of 2013 should be put on hold.
Organic production and labelling of organic products, amendment to Regulation (EU) No XXX/XXX of the European Parliament and of the Council [Official Controls Regulation] and repeal of Council Regulation (EC) No 834/2007. EC JUSTIFICATION : If not agreed in six months withdraw and replace by a new initiative.
Dissemination of Earth observation satellite data for commercial purposes. EC JUSTIFICATION : If not agreed in six months withdraw and replace by a new initiative.
TEXTS ALREADY VOTED BY THE EP AND AWAITING A COUNCIL’S POSITION:
Improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. EC JUSTIFICATION :If not agreed in six months, withdraw and replace by a new initiative
Common European Sales Law. EC JUSTIFICATION : Modified proposal in order to fully unleash the potential of e-commerce in the Digital Single Market.
Statute of the European Foundation ; EC JUSTIFICATION : No progress in Council. Since unanimity is required, there are no prospects that an agreement can be reached.
Last but not least the Commission has withdrawn three proposals aligning the EU legislation into force to the legal basis foreseen by the Treaty for delegated (art. 290 TFEU) and implementing powers (art.291 TFEU). The EC JUSTIFICATION to interrupt the Council / European Parliament negotiations has been very short :To be addressed in the new inter-institutional Agreement on Better Regulation.. The three proposals “were” the following: Alignment to Article 290 of the TFEU legal acts providing for the use of the regulatory procedure with scrutiny, Alignment to Article 290 of the TFUE of legal acts in the area of Justice providing for the use of the regulatory procedure with scrutiny, and, finally, Alignment to Article 290 and 291 of the TFEU of legal acts providing for the use of the regulatory procedure with scrutiny;
(3) Quite worriyng the cases where the Commission threaten the co-legislator by stating that : “If not agreed in six months, withdraw and replace by a new initiative”. Notwhitstanding the parliament’s committes protests the Commission has declared that: “This confirmation of the withdrawals follows constructive discussions with the other institutions in which the Commission has heard their views. The Commission will continue to work on the implementation of its Work Programme in close partnership with the other institutions, including through the tabling of more ambitious and comprehensive proposals on the Circular Economy, after the withdrawal today of the Waste Package….”