Although the majority of the European Commission's legislative initiatives have been successfully concluded (see EUROPE 12261/3), some have not been completed before the end of the 2014-2019 legislative term. Here is a brief and partial overview.
Asylum. The main failure of this last legislature is undoubtedly the one of the ‘asylum’ package, which consists of seven texts designed to strengthen and balance the European asylum system.
The project came up against the block of Visegrád countries opposed to any idea of ‘mandatory quotas' for the distribution of asylum seekers, joined by Italy since the Lega of Matteo Salvini came to power (see EUROPE 12034/1). Providing for a permanent and mandatory relocation mechanism, the position of MEPs was not confirmed at first reading, compromising years of negotiations (see EUROPE 11887/6).
Schengen. The same applies to the Schengen Borders Code.
While France and Germany agreed in 2016 on a reform of the Code in the wake of terrorist attacks requiring external border officials to check all travellers from third countries, including Schengen nationals (the automatic control on European nationals was previously prohibited), Member States have not been able to amend the Code at this stage to facilitate the temporary return to national borders in Schengen (see EUROPE 12203/9).
However, the European Parliament adopted its position at first reading (see EUROPE 12229/12). Everything will now be decided under the next Parliament.
Electronic evidence. "The revolution in the system of judicial cooperation" promised by the Commission with the regulation on electronic evidence will not happen for the time being.
The initial objective was to establish a direct cooperation model to address service providers directly from another Member State.
At the end of 2018, the text was agreed by qualified majority in the EU Council, against the will of eight Member States concerned about the failure to respect fundamental rights and national sovereignty (see EUROPE 12155/6). After lengthy negotiations, the Parliament concluded its work (see EUROPE 12227/8). It drew up seven working documents identifying all the problems with the regulation, leaving it to the next Parliament to continue the work.
Digital. In the digital field, two draft regulations are still in the pipeline: - the confidentiality of electronic communications (ePrivacy), and - the pooling of cybersecurity expertise.
The first text addresses the issue of internet cookies and also covers bypass services such as Skype. At the end of 2017, Parliament had already given its opinion on this update of a 2002 directive, but the EU Council was unable to do so because of too many strong divisions (see EUROPE 12254/5).
The second text establishes, notably, a new "partnership", a "European Competence Centre", which offers the possibility of pooling cybersecurity research capacities and deploying innovative cybersecurity solutions (see EUROPE 12238/12). Interinstitutional negotiations should have been completed in the spring, but they were finally interrupted in order to give the EU Council's legal services time to clarify the link between this new structure and the Horizon Europe research programme after 2020. This study should be published in the coming weeks, according to a source close to the file.
European taxation of digital giants. The European Digital Services Tax, presented by the Commission in March 2018 (see EUROPE 11983/2), has not been successful.
The Commission proposed to tax 3% on the gross income from digital platforms activities, to ensure that multinationals such as Google, Facebook or Amazon pay their fair share of taxes.
But in the EU Council, Ireland, Finland, Denmark and Sweden preferred to reach an agreement at the OECD. The impasse was noted last March (see EUROPE 12212/6). However, the European Commission does not intend to withdraw its proposal.
Negotiations are continuing within the OECD (see EUROPE 12257/2). If international negotiations do not succeed by 2020, discussions on a European solution could resume.
Tax transparency. The proposal for country-by-country tax transparency ('reporting'), presented in April 2016 by the European Commission, has not fared any better.
The Commission's objective was to oblige large companies established in the EU to make certain accounting information (turnover and taxes paid) public. But the proposal, presented in the form of amendments to the directive framing accounting standards and not as a tax proposal, caused an outcry from Member States who wanted to change the legal basis and return to a unanimous vote in the EU Council (see EUROPE 11667/23). The Parliament adopted its position at first reading (see EUROPE 12223/13).
Banks. The reform of the banking structure was withdrawn from the negotiating table by the Commission in October 2017 (see EUROPE 11891/23). The legislative proposal aimed to prohibit some thirty large European systemic banks from engaging in abusive speculative practices (see EUROPE 11007/1). Despite strong reservations on the part of Germany and France, an agreement was reached in the EU Council in November 2014 (see EUROPE 11201/5).
In the Parliament, however, the report was rejected - by one vote - in the Committee on Economic and Monetary Affairs in May 2015 (see EUROPE 11322/6).
Banking union. The European legislator has not been able to complete banking union in the euro area by implementing the deposit guarantee component, even though this is a major issue in the deepening of economic and monetary union.
In addition to the absence of market pressure, the fault is mainly to be attributed to the countries of northern Europe. These countries refuse to allow their banking systems to wipe out the liabilities of banking systems. They obtained that the European legislator act as a priority to reduce risks in the financial system (see EUROPE 12150/11).
In five years, the EU Council has thus never succeeded in establishing its negotiating position on the European Deposit Insurance Scheme (EDIS). The European Parliament was also unable to adopt its position, as the report by Esther de Lange (EPP, Netherlands) went unheeded (see EUROPE 11660/11).
The issue is currently being addressed by an working party that will report to the Eurogroup in mid-June in preparation for the euro area summit a week later.
GMOS. The promise made in 2016 by Commission President Jean-Claude Juncker to reform the GMO authorisation procedure to make it more democratic and prevent the Commission from deciding alone in the future, despite opposition from a majority of Member States, never materialised, despite an attempt to reform the comitology procedure.
In the EU Council, Member States have never followed up on this reform of the comitology procedure proposed by the Commission in 2017 to increase transparency and introduce more accountability (see EUROPE 11938/11, 11725/14).
As it stands, the current comitology procedure leads the Commission to decide, alone, when Member States fail to obtain the qualified majority required to approve or reject a proposal of authorisation. It allows Member States to hold the Commission responsible for the final decision, which is an authorisation in all cases when the Commission has proposed it.
Mobility package. On the transport side, the failure of the file relating to the social and market aspects of the first ‘mobility’ package (posting of drivers, driving and resting time, tachograph, cabotage and market access) is that of the Parliament.
Admittedly, the EU Council reached political agreement in principle at the end of 2018 (see EUROPE 12152/10) and the European Parliament adopted its position on these texts in extremis April (see EUROPE 12229/1). But not one interinstitutional negotiation (trilogue) began during the 2014-2019 parliamentary term.
The finalisation of this file by the end of the Juncker Commission's mandate seems unlikely.
The file on combined transport of goods between Member States also did not result in trilogues (see EUROPE 12211/12). The Parliament therefore voted on a text at first reading at the end of March (see EUROPE 12223/2).
Clock change. A strong symbolic initiative of the Commission in September 2018 (see EUROPE 12094/10), the proposal to end the biannual clock change this year was not successful.
The European Parliament adopted its position in March, suggesting that this clock change should end in 2021 (see EUROPE 12222/10). But in the EU Council, discussions have not progressed since the last progress report in December 2018 (see EUROPE 12151/6).
Coordination of social security systems. The regulation on the coordination of social security systems is one of the major failures of this mandate. Its objective is to update the coordination rules to adapt them to changes in the mobility of workers (frontier workers, posted workers, pluriactive workers, etc.).
Presented in 2016, the negotiation of the text was laborious both in the Council of the EU (see EUROPE 12041/27) and in the Parliament (see EUROPE 12157/19), leaving very little time for interinstitutional negotiations. After the Member States rejected the provisional interinstitutional agreement reached between MEPs and the Romanian Presidency of the Council of the EU (see EUROPE 12225/15), the European Parliament itself rejected - by seven votes - its own position at first reading, reducing to nothing two years of legislative work (see EUROPE 12239/2).
Nevertheless, the Commissioner for Employment and Social Affairs, Marianne Thyssen, still hopes to reach an agreement by autumn (see EUROPE 12252/1).
Electronic ‘services’ card directive. The electronic ‘services’ card directive, which aimed to facilitate and reduce the administrative burden and cost of cross-border provision of services, met with the same fate.
Despite repeated calls from the Commissioner for Industry and the Internal Market, Elżbieta Bieńkowska (see EUROPE 11952/30), the parliamentary committee responsible in the Parliament (see EUROPE 11986/16) rejected the proposal and the Council of the EU suspended any internal work under the Franco-German impetus (see EUROPE 11963/10).
For many, in addition to being "badly put together", this legislative project represented the return of the country of origin principle in the field of services. The Commission stands ready to maintain its proposal, if the co-legislators are willing to do the same.
Services notification directive. The ‘services notification’ directive presented in January 2017 is also one of the failures of this parliamentary mandate. The objective was to improve the notification procedures to the European Commission when a Member State was about to adopt a draft law in the field of services, to analyse its compliance with European law (see EUROPE 11700/4).
But for many Member States, the fact that the Commission could suspend the application of a national legislative act for three months was unacceptable (see EUROPE 12011/12), but also for regional and local authorities (see EUROPE 12138/31). Thus, the Council of the EU tried to introduce changes, but which “contradict the objective of strengthening the implementation of the Services Notification Directive", according to the Commission.
The text is currently in limbo (see EUROPE 12137/37). The Commission assures that it is ready to continue the discussions, "but is not prepared to undermine single market legislation”.
International Public Procurement Instrument. The Commission's proposal for an International Public Procurement Instrument, published in 2012, amended and put forward again in 2016, aimed to promote reciprocity in access to third countries' public procurement markets.
Since then, the document has been shelved following the inability of Member States to define a common line. But the strategy on China, published by the Commission on 12 March 2019, calls on the European institutions to get back to work to ensure greater reciprocity between domestic and foreign investors (see EUROPE 12212/20). And, on France's initiative, the European Council requested that work on this text be resumed.
Dual-use goods export regime. In September 2016, the Commission proposed a new, stricter community regime to modernise and strengthen controls on the export of dual-use goods, those items whose use could be diverted for repressive purposes, the creation of weapons of mass destruction or terrorism (see EUROPE 11634/15).
In January 2017, Parliament adopted its negotiating position with the Member States (see EUROPE 11911/10). However, the legislative course of the proposal ended there, due to the lack of progress in discussions in the EU Council. (editorial staff)