Commission work programme has yet to pass the test in court

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Frans Timmermans must have been aware. [Georgi Gotev]

The new European Commission’s fresh start could be under threat before it’s even managed to get off the ground thanks to an imminent legal opinion from the European Court of Justice (ECJ), writes Allie Renison.

Allie Renison is Head of Europe and Trade Policy at the Institute of Directors

One of the more controversial elements to the Commission’s new work programme released yesterday is the intention to withdraw a number of existing proposals, on grounds ranging from the lack of institutional agreement to wanting to change them to reflect its new political prioirities. As part of the Juncker Commission’s professed commitment to better regulation and its new principle of “political discontinuity”, it is a welcome sign of willingness to match rhetoric with substantive action.

But for some powerful lobby groups in Brussels, who have support in the European Parliament, this comes too close to deregulation for their liking – particularly around those proposals dealing with environmental regulation. They may soon have a leg to stand on should an opinion being delivered by the Court’s Advocate-General on Thursday significantly qualify the Commission’s ‘right’ of legislative withdrawal.

In 2013, the Council lodged a case seeking the annulment of a Commission decision to withdraw its proposal laying down general provisions for macro-financial assistance to third countries. The Commission considered that the subsequent changes which the European Parliament and the Council were set to agree would change the nature of the proposal, and decided to use its ‘power of legislative initiative’ to withdraw it.

The Treaties make reference to the Commission’s power to make and amend proposals, but there is nothing which explicitly sets out an extension of that right to withdraw them. However, since the 1970s, it has theoretically claimed this right, and with no legal challenge to date. In the Commission’s view, this can be exercised when a proposal is no longer relevant because of external developments, or if there is a risk that a legislative amendment would either go far beyond the objective of a proposal or “denaturise” it.

The latter of these, which in essence deal with ‘political withdrawals’, is where the Council takes a different view. There was an attempt to curtail the Commission’s power in this regard in the Maastricht Treaty, but Jacques Delors managed to successfully head the challenge off. As part of its case put before the Court, the Council contends that the exercise of the power of withdrawal is not a matter for the Commission’s discretion. It argues that there is no Treaty provision for a general right of the Commission to withdraw a proposal put before the legislature, yet goes on to say it does not dispute that a power of withdrawal exists.

For the purposes of overall clarity, the Advocate-General on Thursday will thus likely have to set out its interpretation of what exact right and power the Treaties afford the European Commission on withdrawing legislative proposals –if at all, and when. In a way, it is surprising that the Court has not been tested on this substantive point before.

Given the expressly political nature of some of the Commission’s intended withdrawals of certain pending proposals, the opinion delivered by the Advocate-General could have far-reaching consequences if its qualifies the Commission’s power under certain conditions. It would be, of course, in effect a preliminary ruling, given that the judges of the ECJ will make a final judgement – although some 70-80% of advisory opinions are confirmed by the Court.

First Vice-President Frans Timmermans, Juncker’s right-hand man tasked with overseeing better regulation and enforcing subsidiarity, must have been aware of the pending case in drawing up the review of pending legislation. It perhaps follows that the Commission is confident that the Court will confirm its power of withdrawal as a corollary of its right to initiate legislations absolutely. The irony if it does not is that the Council –more supportive of the new Commission’s better regulation agenda than the Parliament – may end up ruing the day it asked the ECJ to get involved.