The European Commission’s threat to withdraw its legislative proposal for the post-2020 EU’s farming subsidies programme has irritated EU lawmakers. EURACTIV.com asked some legal experts to clear the air about the controversy.
The option of scrapping the proposed reform of Common Agricultural Policy (CAP) if it is not in line with the EU’s flagship environmental policy, the European Green Deal, has struck a sour note in the first weeks of negotiations between the European Parliament and the German EU presidency.
Withdrawing the proposal would halt the talks, leaving the EU executive to re-start the legislative process by tabling a new document.
After Commission Vice-President Frans Timmermans hinted at this possibility, the Commission has tried to tone down the dispute and defuse a potential institutional crisis.
In a letter seen by EURACTIV to five lawmakers affiliated to her centre-right European People’s Party (EPP), President Ursula von der Leyen said that, although the withdrawal of a proposal is always a legal and institutional possibility, the Commission is not considering it.
She added that, if underpinned by a joint determination to honour the collective commitment towards sustainability, the negotiation process between the three institutions can result in a revised CAP that is fit for purpose.
Contacted by this website, one of the MEPs said that the EPP is satisfied by von der Leyen’s assurances and even the Greens seem to have changed their target from scrapping to fixing the CAP.
A limited power
Although the political dispute seems settled, at least for the time being, some legal concerns on the Commission’s right to withdraw legislation persist.
In her letter to the EPP, von der Leyen claimed this right and did not explicitly give up on using such powers at a later stage.
The Commission’s power to withdraw its proposals is a controversial subject of legal speculations and a long-standing source of strife between the legal services of different EU institutions.
The main reason is that this power is not expressly established in the Treaties but derived from recent case-law at the EU Court of Justice (ECJ).
In a landmark ruling issued in 2016, the Luxembourg-based court stated that the right to revoke a proposal is not absolute and limited it to a specific hypothesis.
The ECJ has historically confined the exercise of the right of withdrawal to the existence of an amendment planned by the Parliament and the Council distorting the raison d’être of the original proposal.
However, in this case the Commission is not contesting amendments of co-legislators in conflict with its original CAP proposal, but it is the Commission’s proposal itself that is problematic when assessed against the Green Deal, which was presented after the CAP proposal.
If you no longer believe in it…
According to Alberto Alemanno, Jean Monnet Professor in EU Law at HEC Paris, the Commission enjoys considerable discretion in deciding whether or not to withdraw a proposal, although that is slightly tempered by the Court’s case-law.
“Given the new circumstances surrounding the CAP proposal and the public policy need to realign it with the Green New Deal, it seems plausible – both legally and politically – that the EU commission is allowed to withdraw a proposal in which it no longer believes in,” he said.
He added that, ultimately, it is a political and not legal reason preventing Timmermans from withdrawing the proposal.
New mandate, new proposal…
“My view would be that a new Commission has the right to reconsider outstanding proposals as it has a new mandate,” said Steve Peers, EU Law Professor at the University of Essex.
According to him, this right may include withdrawing proposals, as a new Commission often does, in light of new factors which may differ from the policy of the previous Commission.
Plaintiffs could assert the argument of bad timing since the new College should be entitled to withdraw proposals made by its predecessor shortly after acceding to power.
“But there’s a counter-argument that a new Commission can establish a different approach to withdrawal of a proposal even if it doesn’t withdraw it immediately,” he said.
“If it were to decide to withdraw the proposal, the Commission could reasonably argue that it should be withdrawn because it would conflict with the general interest of the Union,” said Matteo Bonelli, Assistant Professor of EU law at Maastricht University.
The change of political priorities and the risk of conflict with the general interest as defined in the Green Deal could be a sufficiently solid and objective reason to withdraw the proposal from a legal point of view, he added.
The withdrawal act requires, however, to be in compliance with the obligations imposed by the ECJ and the EU law, namely the obligation to state reasons, an objective reasons for the withdrawal and the respect for the principle of loyal cooperation, Bonelli concluded.
[Edited by Benjamin Fox]