Brussels, 18/12.2014 (Agence Europe) - This is the first time the Court of Justice of the EU has had to rule on such a case: can the European Commission withdraw a legislative proposal which has already been put to the Council of the EU? For Advocate General Niilo Jaaskinen, who delivered his opinion to the Court on Thursday 18 December, the answer is “yes”, as long as the Council has not adopted a first reading position.
The case in point (C-409/13) relates to a proposal for a framework regulation establishing general provisions with regard to macro-financial assistance to third countries, which the Commission submitted to the Council in 2011. In 2013, the Commission decided to withdraw the proposal, when the text was under first reading in the Council, claiming that the initial content of its proposal had been distorted.
The Council is now challenging that decision before the Court, arguing that the Commission was in breach of the treaties, in particular of the principles of the conferral of powers and institutional balance (by taking for itself right of veto, exceeding its right of initiative and its executive role), and the principle of loyal cooperation (the Commission, it claims, was late in expressing its intention to withdraw the text). Further, the Council says that the Commission failed to give reasons for its decision.
The case is a delicate one, since the treaties make no provision for a power of withdrawal for the Commission, even though this is something that it has done relatively regularly, as may be witnessed by the Commission's 2015 work programme which has just been presented by Commission President Jean-Claude Juncker (see EUROPE 11219). It was given this reality that the Advocate General concluded that the Commission's power to withdraw legislative proposals should be recognised, given that it is the “depository of the general interest of the Union” and that this is “ultimate expression” of its monopoly on legislative initiative.
However, this power is not without limit. There is firstly a limit in time. According to the Advocate General, the Commission can withdraw a text as long as the Council has not adopted it at first reading. Without this limit, the power would be a right of legislative veto, which would not be compatible with the spirit of the treaties. Further, withdrawal cannot come as a surprise, or be in breach of good faith or be used as a threat in inter-institutional negotiations.
In this case, the Commission met these requirements, he concluded. The possibility of withdrawal had been raised several times and at a high level, although the Commission could have been more open and appropriate in its communication. Similarly, the reasons were communicated and were closely related to its role as defender of the general interest of the EU. But, the Commission does not, as a principle, have to give reasons since the decision is one of internal institutional procedure which is part of the legislative process. For that reason, while the Court may examine the conditions under which the power of withdrawal is exercised, it is not for the Court to rule on the merits of such a decision, or it might overstep its jurisdiction. (JK)