Tag: european-parliament

When the tail wags the dog : the Commission proposal of withdrawing 37  EU pending legislative proposals

By Emilio De Capitani

On February 12th only few hours after the adoption by the Commission of the Work Programme for 2025 Vice President Sefcovich, presented it to the EP Plenary its . Even if most of the MEPs interventions covered several points the Commission’s work programme the debate was rather general and generic. A similar exercise took place on February 25th at the Council of General Affairs when, following the usual practice of individual members reading written texts, Ministers debated the same texts together with a more general draft conclusion text on the priorities for the new legislature.

According to the 2016 Interinstitutional agreement on Better Law Making after the presentation of the Commission Work Programme “…and drawing on it, the three Institutions will exchange views on initiatives for the coming year and agree on a joint declaration on annual interinstitutional programming (“joint declaration”), to be signed by the Presidents of the three Institutions. The joint declaration will set out broad objectives and priorities for the following year and will identify items of major political importance which, without prejudice to the powers conferred by the Treaties on the co-legislators, should receive priority treatment in the legislative process”. (emphasis added).

So, even though, looking from outside the two debates in Parliament and in the Council where not particularly exciting the Agreement of a Joint Declaration may have an impact also for the EU Citizens notably if the outcome will be that the Parliament and the Council will agree with the Commission proposal of ending negotiations on 37 legislative proposals on which the co-legislators have already worked (and in some cases even reached partial agreements) (see the list below).

On this issue par. 9 of the 2016 Interinstitutional Agreement on better law making foresees that : “
In accordance with the principles of sincere cooperation and of institutional balance, when the Commission intends to withdraw a legislative proposal, whether or not such withdrawal is to be followed by a revised proposal, it will provide the reasons for such withdrawal, and, if applicable, an indication of the intended subsequent steps along with a precise timetable, and will conduct proper interinstitutional consultations on that basis. The Commission will take due account of, and respond to, the co-legislators’ positions.”

As it is currently formulated the text of the agreement cover two very different situation the first one when the Commission has the power of withdrawing a legislative pending proposal and the second one when the Commission is just proposing to the Co-legislator to abandon some legislative negotiations for political reasons or even for making some housekeeping if the pending proposals have become obsolete.

The first case of direct withdrawal the Commission’s faculty of withdrawing a legislative proposal when legislative negotiations are still pending, has been recognized but in rather strict terms by the Court of Justice only  ‘where an amendment planned by the Parliament and the Council distorts the proposal for a legislative act in a manner which prevents achievement of the objectives pursued by the proposal and which, therefore, deprives it of its raison d’être, the Commission is entitled to withdraw it’. It may however do so only after having had due regard to Parliament’s and Council’s concerns behind their wish to amend the proposal.” (C- C‑409/13, p.83). Framed in this way the Commission rights of withdrawing pending legislative procedures may be acceptable from an institutional balance perspective (at least until the Treaty will not recognize a full right of legislative initiative to the EP and to the Council and not the current “quasi petitionary” power foreseen by art 225 for the EP and 241 TFEU for the Council).

In all the other cases it is up to the Co-legislator (EP and Council) to decide if a legislative negotiation should be abandoned and the Commission may withdraw the relevant legislative proposal. Indeed, according to the Luxembourg Judges the Commission’s faculty of withdrawing a legislative text“..cannot, however, confer upon that institution a right of veto in the conduct of the legislative process, a right which would be contrary to the principles of conferral of powers and institutional balance.”(C- C‑409/13, p.75).

Let’s be clear notwithstanding the Commission’s ambition to be considered at the same level of the co-legislators, after Lisbon the “legislative triangle” is no more “equilateral” and the “Institutional balance” is not the same than in the pre-Lisbon era. Even though the Commission maintains a quasi-monopoly of legislative initiative, it is up only to the co-legislator to negotiate and finalize the EU legislative measures (art.289 and 294 of the TFEU) or to abandon them if they so wish. The proof ? Think about the case of legal challenges of an EU legislative text: only the EP and the Council will be responsible before the Court and not the Commission even when the co-legislators adopted the Commission Proposal without amending it.

Bearing in mind all these elements the Commission announcement in the 2025 work program of withdrawing not less than 37 legislative proposals seems in some cases highly questionable. As it has been presented in the Commission’s Work program the Citizen may consider that the Commission is only asking for an opinion from the co-legislators but this should not be the case and turn the respective Institutional roles upside down.

In a way, this is a tail which wags the dog.

But this procedure will also blurs the role of the co-legislator and threaten the principle of legislative transparency as required by the treaty (art. 15.2 TFEU). Ignoring why the EP and the Council want to abandon legislative negotiations does not fit very well with the principle according to which “The functioning of the Union shall be founded on representative democracy” (art. 10.1 TEU). In this perspective none may contest that legislative activity is at the core of the EU “functioning” and should happen in full transparency (art. 15.2 TFEU) a condition which should be granted by the co-legislators and notably by the EP itself.  As a consequence the co-legislators should not abdicate to their political and Institutional responsibilities when they negotiate or even more when decide to abandon legislative negotiations on given legislative proposals by explaining why they intend to do so. Hiding behind few lines of justification and a pretended Commission right to withdraw legislative pending proposals is not the best you may expect from directly elected Members and by the Council.

Looking on the Council side some elements may arise from the Institution’s contribution to the Joint declaration which will debated (and adopted ?) on March 18th with a view to sign it on the margins of the March 2025 European Council.

But on the European Parliament side, in the absence of a Plenary resolution is not clear who will take the responsibility to express the position of the Institution on the proposed legislative withdrawals.

Maybe the position will be taken by the Conference of Presidents of Political Groups according to art 27.2 of the EP Rules of Procedures making reference to “legislative planning”. However, withdrawing 37 pending legislative proposals is not an organizational measure which may fall under the Conference of Presidents remit. Closing the possibility of further debating a legislative proposal is a decision on the content of a legislative procedure which can be taken only by the Plenary as it is the case for all the EU legislative votes. Moreover, in the absence of a specific provision in the Treaty (as foreseen by art 294 TFEU) closing a legislative negotiation require the agreement between the co-legislator and the case may well exist where only one of them agree for the withdrawal (see the case of the revision of the Transparency Regulation 1049/01 which is still valid for the EP but not for the Council..).  

Not surprisingly some Civil society organizations have already complained for some of these announced withdrawals (notably of anti-Discrimination Directive – point 26 of the list). In the Council  several member States have declared their interest in continuing the legislative work (SW, PT, IRL, NL, EST, FR, BE, SLO, IT and Malta) but what is the EP position ?

But other cases raise a similar questions. Why proposing to withdraw:

These are just few questions but other may be raised and it is up to the co-legislator to explain if they agree with the Commission proposals and why.

The List of legislative proposals deemed to be withdrawn

1 COM(2011)714 final 2011/0314 (CNS) Proposal for a COUNCIL DIRECTIVE on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States Obsolete – the scope of the proposal has been partly taken over by the Directive implementing the OECD Pillar 2 on minimum corporate taxation. The remaining issues the proposal intended to tackle will be addressed via an upcoming Omnibus act as a part of the simplification process.

2 COM(2011)827 final 2011/0391 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common rules for the allocation of slots at European Union airports Obsolete – the proposal is by now obsolete. The Commission has launched a fitness-check and will decide on the basis of its findings on the way forward.

3 COM(2012)336 final 2012/0164 (APP) Proposal for a COUNCIL REGULATION establishing a facility for providing financial assistance for Member States whose currency is not the euro Obsolete – the proposal needs to be updated as regards i.a. the funding modalities of the Balance of Payments Facility and to integrate the lessons to be drawn from the recent crises, as well as the institutional, economic and financial sector developments since 2009, and their possible implication for the design and implementation of the facility, in line with the Council Conclusions of 27 March 2024.

4 COM(2015)603 final 2015/0250 (NLE) Proposal for a COUNCIL DECISION laying down measures in view of progressively establishing unified representation of the euro area in the International Monetary Fund No foreseeable agreement – in the context of the discussions on Europe’s economic and financial sovereignty, the Commission will assess whether another proposal should be tabled or another type of approach should be chosen.

5 COM(2017)276 final 2017/0115 (CNS) Proposal for a COUNCIL DIRECTIVE amending Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures, as regards certain provisions on vehicle taxation No foreseeable agreement – the proposal is blocked with no perspective of agreement.

6 COM(2017)647 final 2017/0288 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1073/2009 on common rules for access to the international market for coach and bus services No foreseeable agreement – the proposal has not been taken up for discussion in the Council and is by now outdated.

7 COM(2017)827 final 2017/0333 (APP) Proposal for a COUNCIL REGULATION on the establishment of the European Monetary Fund No foreseeable agreement – many of the changes proposed under this initiative have been incorporated into a separate revision of the European Stability Mechanism Treaty. 

8 COM(2018)135 final 2018/0063B (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on credit servicers, credit purchasers and the recovery of collateral No foreseeable agreement – the proposal is blocked and further progress is unlikely.

9 COM(2018)329 final  2018/0164(CNS) Proposal for a COUNCIL DIRECTIVE amending Directive 2006/112/EC as regards the introduction of the detailed technical measures for the operation of the definitive VAT system for the taxation of trade between Member States No foreseeable agreement – discussions are suspended since 2019 and further progress is unlikely.

10 COM(2018)339 final  2018/0171 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on sovereign bond-backed securities No foreseeable agreement – the proposal is blocked and further progress is unlikely.

11 COM(2018)387 final 2018/0212 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the establishment of a European Investment Stabilisation Function No foreseeable agreement – The proposal is outdated with the entry into force of NGEU and the Recovery and Resilience Facility (RRF) and the withdrawal of the socalled Budgetary Instrument for Convergence and Competitiveness (BICC) in February 2021. 

12 COM(2019)38 final 2019/0017 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2015/757 in order to take appropriate account of the global data collection system for ship fuel oil consumption data Obsolete – changes contained in this proposal have been incorporated into the most recent EU ETS revision, adopted in 2023.

13 COM(2020)49 final  2020/0022 (CNS) Proposal for a COUNCIL DIRECTIVE on administrative cooperation in the field of taxation (codification) Obsolete – since the adoption of this proposal in 2020, a number of significant amendments have been adopted, making this codification proposal obsolete. The Commission will propose a new codified proposal.

14 COM(2020)577 final 2020/0264 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2018/1139 as regards the capacity of the European Union Aviation Safety Agency to act as Performance Review Body of the Single European Sky Obsolete – changes contained in this proposal have been incorporated into the Single European Sky (“SES II +”) Regulation.

15 COM(2021)769 final 2021/0400 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down for certain road vehicles circulating within the Union the maximum authorised dimensions in national and international traffic and the maximum authorised weights in international traffic (codification) Obsolete – since the adoption of this proposal in 2021, a recent amendment has been proposed by the Commission, that will make this codification proposal obsolete. The Commission will propose a new codified proposal as soon as the new amendment will have been adopted.

16 COM(2022)222 final 2022/0160 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources, Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency Obsolete – the changes suggested by this proposal were incorporated during the discussions on the revision of the Energy Performance of Buildings Directive, the Energy Efficiency Directive and the Renewable Energy Directive.

17. COM(2023)232 final 2023/0133(COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on standard essential patents and amending Regulation (EU)2017/1001 No foreseeable agreement – the Commission will assess whether another proposal should be tabled or another type of approach should be chosen.

18 COM(2018)634 final 2018/0329 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) A contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018 Obsolete – the Commission intends to present a new proposal in 2025 (referred to in annex 1 of this Commission Work Programme) in the context of which the current pending proposal will be effectively withdrawn.

19 COM(2021)890 final 2021/0427 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL addressing situations of instrumentalisation in the field of migration and asylum Obsolete – the content of this proposal was merged into Regulation (EU) 2024/1359 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147.

20 COM(2021)752 final 2021/0401 (CNS)  Proposal for a COUNCIL DECISION on provisional emergency measures for the benefit of Latvia, Lithuania and Poland Obsolete – the proposal was blocked during the interinstitutional discussions and is now obsolete.

21 COM(2024)174 final 2024/0094 (NLE) Proposal for a COUNCIL RECOMMENDATION for the 2024/2025 Schengen Cycle Obsolete – no agreement was foreseeable. The Schengen Council agreed on a number of priority areas for action that are dealt with via other means than this proposal.

22 COM(2012)403 final 2012/0196 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of species of wild fauna and flora by regulating trade therein (Recast) No foreseeable agreement – no agreement is expected. Furthermore, since 2012, developments took place that make this proposal obsolete. The Commission will assess whether another proposal should be tabled or another type of approach should be chosen to allow for a new start.

23 COM(2015)177 final 2015/0093 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically modified food and feed on their territory No foreseeable agreement – any potential further amendment of the GMO legislation will depend on the outcome of the negotiations on the proposal for new genomic techniques, or the identification of issues to be addressed in the context of the biotechnology and biomanufacturing initiative.

24 COM(2022)563 final 2022/0348 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down management, conservation and control measures applicable in the Area of the Southern Indian Ocean Fisheries Agreement (SIOFA) No foreseeable agreement – no agreement is expected between the European Parliament and the Council at first reading. The Commission intends to present a new proposal in 2025 in the context of which the current pending proposal will be effectively withdrawn. 

25 COM(2023)771 final 2023/0449 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EU) 2016/1139, (EU) 2018/973 and (EU) 2019/472 as regards the targets for fixing fishing opportunities No foreseeable agreement – no agreement is expected from the colegislators.

26 COM(2008)426 final 2008/0140 (CNS) Proposal for a COUNCIL DIRECTIVE on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation No foreseeable agreement – the proposal is blocked and further progress is unlikely.

27 COM(2011)137 final 2011/0073 (COD)   COM(2008)229 final 2008/0090 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents  No foreseeable agreement – no progress has been made since 2011.

28 COM(2016)799 final 2016/0400B (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union No foreseeable agreement – the proposal is blocked and further progress is unlikely. There is a legal obligation to put legal acts adopted prior to the entry into force of the Treaty of Lisbon in conformity with Articles 290 and 291 TFEU. The Commission will therefore present to the colegislators a new proposal to that effect.

29  COM(2017)10 final 2017/0003 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications No foreseeable agreement – no agreement is expected from the colegislators. Furthermore, the proposal is outdated in view of some recent legislation in both the technological and the legislative landscape.

30 COM(2017)85 final 2017/0035 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers No foreseeable agreement – the proposal is blocked and further progress is unlikely.

31 COM(2018)96 final 2018/0044 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the law applicable to the third-party effects of assignments of claims No foreseeable agreement – the proposal is blocked and further progress is unlikely.

32. COM(2022)496 final 2022/0303 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on adapting non-contractual civil liability rules to artificial intelligence (AI Liability) No foreseeable agreement – the Commission will assess whether another proposal should be tabled or another type of approach should be chosen.

33. JOIN(2015)36 final 2015/0302 (NLE) Joint Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Union, of the Cooperation Agreement on Partnership and Development between the European Union and the Islamic Republic of Afghanistan Obsolete – the ratification process of this agreement has been interrupted with the establishment of a Taliban appointed caretaker government that, to date, remains unrecognized by the international community, making the original agreement obsolete.

34. COM(2022)63 final 2022/0043 (NLE) Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the written procedure by the Participants to the Arrangement on Officially Supported Export Credits amending Annex IV Obsolete – the proposal was made in the negotiations on the modernisation of the Arrangement on Officially Supported Export Credits, which were finalised in 2023. The content of this proposal was included in another Council decision making this one redundant.

35 COM(2022)184 final 2022/0125 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, Euratom) 2018/1046 on the financial rules applicable to the general budget of the Union Obsolete – the content of the proposal has been adopted end of September 2024 as part of the revision of the Financial Regulation (Recast).

36. COM(2024)301 final 2024/0059 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2021/1148 as regards the financial envelope and the allocation for the thematic facility No foreseeable agreement – no agreement is expected. Furthermore, the MFF mid-term revision can be implemented without this legal proposal.

37. COM(2024)100 final 2024/0060 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 2021/522, Regulation (EU) No 2021/1057, Regulation (EU) No 2021/1060, Regulation (EU) No 2021/1139, Regulation (EU) No 2021/1229 and Regulation (EU) No 2021/1775 as regards the changes to the amounts of funds for certain programmes and funds No foreseeable agreement – no agreement is expected. The MFF mid-term revision can be implemented without this legal proposal. An amendment to the Regulation 2021/1755 establishing the Brexit Adjustment Reserve (BAR) to establish the legal basis for redistribution of the outstanding amounts between the Member States will be proposed by the C

Verfassungsblog : Why an EU Country under the Surveillance Procedure (Article 7.1 TEU) Should not Chair the Council Presidency

by Virgilio DASTOLI and Emilio DE CAPITANI

In accordance with the Council Decision on the exercise of the Presidency of the Council of the European Union,1) from July 1 of this year the office is to be held by Hungary. This occasion will mark the first time that the Presidency will have been held by a Member State that has been subject to the “surveillance” procedure in Article 7(1) of the Treaty on European Union, having been launched by the European Parliament in September 2018.

As the Court of Justice has recognised,2) by adopting its Resolution, the EP has already triggered the legal consequences foreseen by Protocol 24.

‘[A]s long as the Council or the European Council has not taken a decision in respect of the Member State concerned, a Member State may, by way of derogation from the general rule laid down in that single article, take into consideration or declare admissible to be examined any asylum application lodged by a national of the Member State that is the subject of that procedure.’

Simply put, it means that Hungary is no longer to be considered a “safe country”, and if it should occur, a Hungarian may request asylum in another EU Country. In other words, the general presumption that fundamental rights and values are respected in that Member State is no longer absolute, and precaution should be taken when fundamental rights of individuals are concerned (as is the case in relation to the European Arrest Warrant). In a more general sense, and in the relations with other Member States or EU Institutions, the principle of mutual trust that is the bedrock of intra-EU cooperation is not “blind trust” and cannot be taken for granted.

Within this perspective, it would be sensible to assume that a Member State that does not enjoy the full confidence of the other Member States should not be responsible for a key coordinating role, as is the case when holding the Council Presidency.  As a matter of fact, holding the Council Presidency is anything but a protocolar task. It plans, coordinates and chairs meetings of the Council and most of the Council’s preparatory bodies, i.e. working parties and committees. It suggests compromise solutions with a view to reaching an agreement between the Members of the Council (‘honest broker’). The Presidency should be, by definition, neutral and impartial. It is the moderator for discussions and cannot, therefore, favour either its own preferences or those of a particular Member State.

But holding the Council Presidency also has an essential interinstitutional dimension, because it is the Presidency that represents the Council in its relations with the European Parliament (EP) and negotiates on behalf of the Council to reach agreements on legislative files by protecting and promoting together the EU values that Hungary is openly challenging.

It is not surprising that the European Parliament (which originally triggered the Article 7(1) TEU procedure against Hungary) already one year ago3) sent a Resolution to the Council and the Commission underlining

‘the important role of the presidency of the Council in driving forward the Council’s work on EU legislation, ensuring the continuity of the EU agenda and representing the Council in relations with the other EU institutions” but also questioning “…how Hungary will be able to credibly fulfil this task in 2024, in view of its non-compliance with EU law and the values enshrined in Article 2 TEU, as well as the principle of sincere cooperation’.

Surprisingly, neither the Commission nor the Council have to date furnished any response. Perhaps the reason was that these two institutions were expecting a positive development prior to the end of the legislative term, such as apparently occurred with Poland, (the only other European Country subjected to the Article 7(1) TEU procedure). Yet, unfortunately, in the case of Hungary, the situation has in the meantime rather worsened, to the extent that the European Parliament adopted two new Resolutions, the first on January 18 of this year4) and the second on April 24.5)

These highly detailed texts summarise and update the already formidable list of all Hungarian infringements of the rule of law and of the Budgetary Conditionality Mechanism. The most recent text declares in even stronger words the same concerns as to the suitability of Hungary as President of the Council and declares the EP ‘readiness to take measures to defend the credibility of the Union with respect to the values enshrined in Article 2 TEU as regards cooperation with the Council’.

It remains to be seen if the two most recent EP texts will once again fall on deaf ears on the Council side. However, from a constitutional point of view, the assessment of the EP appears well founded and should have received much greater attention from the Council, notably because by maintaining the Hungarian Presidency the Council is threatening the smooth functioning of the EU in its essential legislative and budgetary functions as envisaged in the post-Lisbon Treaty framework: these functions now fall within the joint responsibility of the European Parliament and of the Council (Article 14(1) and 16(1) TEU), and this co-responsibility requires a great deal more than loyal cooperation between the two institutions (Article 13 TEU).

It would now be both prudent and sensible for the Council to modify its 2016 Decision, by qualified majority, as already provided for in legal doctrine,6)  by foreseeing explicitly that Council Presidency should not be held by a Country under art. 7 Procedure. As a consequence the Hungarian Presidency will be delayed until the Article 7(1) TEU surveillance procedure will have been successfully concluded. It has to be noted that a postponement should not be considered as a sanction against Hungary, but rather a simple precautionary measure to preserve the smooth functioning of the European Union and to avoid a period of interinstitutional bickering between the EU co-legislators, particularly at such a decisive moment for the EU legislature both from an internal and international point of view. Moreover, it wouldn’t be the first time that the Council Presidency has been postponed, and then for much less serious reasons.  As rightly noted by the Meijers Committee,

‘changes in the previously agreed order of Presidencies have not been uncommon.  They occurred on six occasions, for different reasons: three times after the accession of new Member States, in 1995, in 2005 and in 2007; in 2002 at the request of Germany because general elections were scheduled during its upcoming Presidency; in 2009 because of the Treaty of Lisbon; and in 2016 after accession of Croatia and the Brexit Referendum with regard to the UK Presidency, which was scheduled to start in 11 months’ time, as of July 2017. Therefore, it is established legal and political practice to reconsider the order of the Presidency in case of relevant circumstances, even if relatively close to the date that the rotation is scheduled to start’.

It is finally also worth noting that an urgent appeal to postpone the Hungarian Presidency has very recently been submitted to the EU Institutions by the European Movement (IT, ES, FR branches).7) The European Commission President, Ursula Von Der Leyen, has shared it with the competent Members of the College, notably with Vice-President Maroš Šefčovič, who is responsible for interinstitutional relations. The time period until July 1 is rapidly diminishing, and on June 18 the General Affairs Council will decide on a reasoned proposal from the Commission on closing the Article 7(1) TEU procedure against Poland.8) Will it also be the occasion to discuss the issue of the incoming Hungarian Presidency? If so the point could also be submitted for final decision at the European Council Meeting on June 27/28 under the chapter on institutional issues (as the general responsibility on the issue of Council Presidencies falls under the COEUR competence – Article 236 TFEU).

We, the undersigned scholars, experts and citizens, support this call for the postponement of the Hungarian Presidency.

Those who wish to support this initiative can send their contact details here.

Prof. Gábor Halmai, European University Institute, Florence

Prof. Sergio Fabbrini, Luiss University, Rome

Prof. Petra Bard, Radboud University

Prof. Tomacz Tadeus Koncewicz, University of Gdańsk, Department of European and Comparative Law

Prof. Laurent Pech, University College Dublin

Prof. Paul Craig, University of Oxford

Prof. Kim Lane Scheppele, Princeton University

Prof. Catherine Dupré, University of Exeter Law School

Prof. Maria Bergström, Uppsala University, Faculty of Law

Prof. Marie-Laure Basilien-Gainche University Jean Moulin Lyon 3, Institut Universitaire de France

Prof. Henri de Waele, Radboud University Nijmegen and University of Antwerp

Prof. Elspeth Guild, Queen Mary University of London

Prof. Olivier Costa, CNRS, CEVIPOF, Sciences Po, Paris

Dr. Marta Lasek-Markey, Trinity College Dublin

Prof. Stephen Skinner, University of Exeter

Dr. Christine Bicknell, Human Rights and Democracy Forum, University of Exeter Law School

Dr. Carlotta Garofalo, University of Graz

Ounia N. Doukoure, Paris 1 University, Institut Convergences Migrations ; Lille Catholic University

Prof. Marc Valéri, University of Exeter

Prof. Federico Fabbrini, Dublin City University

Prof. Dominique Custos, Caen Normandie University

Prof. Dino G. Rinoldi, Catholic University of the Sacred Heart of Milan

Prof. Nicoletta Parisi, Catholic University of the Sacred Heart of Milan

Prof. Douwe Korff, University of Oxford

Prof. Susanna Cafaro, University of Salento

Prof. Laurence Burgorgue-Larsen, Paris 1 University

Prof. Fred Constant, University of the Antilles

Prof. Jean-Manuel Larralde, Caen Normandie University

Prof. Maria Castillo, University Caen Normandie University

Prof. Maciej Bernatt, University of Warsaw

Prof. Yves Poullet, University of Namur

Prof. Antonio Da Re, University of Padova

Prof. Luciano Corradini, Roma Tre University

Prof. Massimiliano Guderzo, University of Siena

Prof. Massimo Fragola, Università della Calabria

This is a pre-peer reviewed version of an article submitted for publication in the European Law Journal.

References

↑1Council Decision (EU) 2016/1316 of 26 July 2016 amending Decision 2009/908/EU (OJ L 208, 2.8.2016, p. 42) : https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D1316.
↑2See paras. 39 and 40 of Case C-650/18, Ungary v. European Parliament, June 3 2021, EU:C:2021:426:‘39      In the present case, it should be noted that the adoption of the contested resolution initiates the procedure laid down in Article 7(1) TEU. Under point (b) of the sole article of Protocol (No 24), once that procedure is initiated and as long as the Council or the European Council has not taken a decision in respect of the Member State concerned, a Member State may, by way of derogation from the general rule laid down in that single article, take into consideration or declare admissible to be examined any asylum application lodged by a national of the Member State that is the subject of that procedure.40      It follows that the adoption of the contested resolution has the immediate effect of lifting the prohibition, which is in principle imposed on the Member States, on taking into consideration or declaring admissible to be examined an asylum application made by a Hungarian national. That resolution thus changes, in relations between Member States, the position of Hungary in the field of asylum.’
↑3European Parliament resolution of 1 June 2023 on the breaches of the Rule of Law and fundamental rights in Hungary and frozen EU funds (2023/2691 RSP)OJ C, C/2023/1223, 21.12.2023, ELI: http://data.europa.eu/eli/C/2023/1223/oj
↑4See point 8 of the Resolution “Situation in Hungary and frozen EU funds”  questioning again “..if the Hungarian Government will be able to credibly fulfil this task in 2024, in view of its non-compliance with EU law and the values enshrined in Article 2 TEU, as well as the principle of sincere cooperation;” and  “asking the Council to find proper solutions to mitigate these risks as soon as possible”,  https://www.europarl.europa.eu/doceo/document/TA-9-2024-0053_EN.html.
↑5See Resolution Ongoing hearings under Article 7(1) TEU regarding Hungary to strengthen Rule of Law and its budgetary implications where it regretted ‘that the Council has not yet found a solution to this problem, and that representatives of the Hungarian Government would chair the Council’s meetings concerning democracy, the rule of law and fundamental rights, including meetings related to protecting the EU’s financial interests and budget; underscores that this challenge comes at the crucial moment of the European elections and the formation of the Commission; deplores the failure to find a solution and reiterates its readiness to take measures to defend the credibility of the Union with respect to the values enshrined in Article 2 TEU as regards cooperation with the Council;’  https://www.europarl.europa.eu/doceo/document/TA-9-2024-0367_EN.html.
↑6See the Mejiers Committee “Comment on the exercise and order of the Presidency of the Council of the EU”, published on 19 May 2023, https://www.commissie-meijers.nl/comment/comment-on-the-exercise-and-order-of-the-presidency-of-the-council-of-the-eu/.
↑7Available at:  https://www.movimentoeuropeo.it/images/documenti/VIKTOR_ORB%C3%81N_MUST_NOT_CHAIR_THE_COUNCIL_OF_THE_EUROPEAN_UNION_MEIT-FR-ES.pdf.
↑8Available at: https://data.consilium.europa.eu/doc/document/ST-10716-2024-INIT/en/pdf.

Would the EU buy an used car from this man ?

BRUSSELS, BELGIUM – APRIL 17: Hungarian Prime Minister Viktor Mihaly Orban talks to assembly during a discussion on Day 2 of The National Conservatism Conference at the Claridge on April 17, 2024 in Brussels, Belgium. (Photo by Thierry Monasse/Getty Images)

This rhetorical question dating back from the 1960s, joking on the credibility of President Nixon in the midst of Watergate, springs to mind when one notes that Hungarian President Orban is about to become the President of the Council of the European Union as of July 1 of this year.

Don’t be fooled , this is not a pro-forma appointment; quite the opposite. In that capacity the Hungarian President will be responsible for managing most of the day-to-day work of the Council of the Union at a time when the highest offices of the European institutions will be appointed, the first decisions in the political, legislative and budgetary spheres of the beginning of the legislature will be made, and, in the background, a decisive phase of the Ukraine crisis will be entered and a presidential elections will take place in the United States.

Now, Mr Orban is the President of a Country which is, since six years,  under an EU’s surveillance procedure (Art 7.1 TEU) for risk of serious violation of the values on which the European Union is founded, and for which the transfer of European funds has been frozen for violation of the principle of the rule of law. Above all, we are talking of a country whose government daily puts spokes in the wheels of the European Union by using or threatening its right of veto on decisions such as those for sanctions on Russia or aid to Ukraine (so much so that some EU countries evoked earlier this year the possibility of suspending its right to vote-Article 7.2 TEU).

In a “normal” European Union, a Country with this profile should not be in charge of coordinating other member Countries, and it to would be sensible to postpone the Presidency, at least to a time when the surveillance procedure has been successful closed.

Quite surprisingly, until now, the European Council has not considered sensible to postpone the Hungarian Presidency even if should not be seen as a “sanction” against Hungary but, more, as a simple precautionary measure in the interest of the proper functioning of the Union. Moreover, postponing Council Presidencies is not uncommon and this kind of decision has been taken at qualified majority because of less important reasons (by the way such move would be less courageous and controversial than the one that President Michel’s father took twenty-four years ago, as Belgian foreign minister in the Haider affair…).

At the end of the Day, the obligation of promoting the respect for the values of the Union is binding not only for the EU countries but also for the institutions themselves and the Council should be aware that under the Hungarian Presidency it is more than likely that It may encounter problems in the pursuit of this goal. When EU fundamental values may be at stake precautionary measures are more than needed (as the EP proved when, because of Mr Buttiglione declarations on Homosexuality did’nt approved its Candidature as EU Commissioner for anti-discriminatory policies).

Postponing the Council Presidency was already suggested by the Meijer’s Committee in 2023 and, more recently, by the European Parliament with two resolutions on January 18 and on April 24 has denounced the many persistent Hungarian violations of European law. Will the EP President of the European Parliament, Metsola raise this issue before the European Council meeting already at its next June 17/18th (before the formal Institutional Meeting on June 27/28th )?

The EP resolutions are even more justified by the fact that according to the treaties legislative and budgetary powers are a joint responsibility of the Parliament and the Council (Art.14.1 and 16.1 TEU) and, as it was the EP which triggered the art.7.1 Procedure against Hungary there is a clear risk of interinstitutional tensions in a delicate phase of the EU life, to say the least. The fact remains that a formal proposal to revise the 2009 European Council Decision on Council Presidencies may be made not only by the European Council Presidency but also by the President of the Commission and/or the current (Belgian) Council Presidency or following a request to the Presidency by any COEUR Member.

As simple Citizen I am puzzled by the fact that Hungarian open challenge to EU values has been condemned  not only leftist political forces but also by liberal and EPP forces.  What is the point of these repeated public statements in favor of the values of the Union if at the moment of being consistent with our own words we forget them?

In a way is like condemning someone of being drunk and giving him at the same time the keys of your car so that he can drive you home.