In a note dated Friday, 7 June, of which EUROPE has received a copy, lawyers from the Legal Service of the Council of the European Union raise several questions concerning the European Commission’s proposal to put an end to changing the clocks twice a year.
This document thus echoes the symbolically strong proposal made last September (see EUROPE 12094/10), which has already given rise to exchanges among national delegations (see EUROPE 12127/1). Nevertheless, negotiations on this matter have been stalled in the EU Council since a progress report was published this past December (see EUROPE 12151/6).
This legal analysis was requested by the Member States’ ambassadors to the European Union (Committee of Permanent Representatives–Coreper) on 3 April last, a request that was reiterated by national experts during the meeting of the EU Council’s Working Party on Land Transport the following day.
The points addressed by the EU Council’s Legal Service concern the legal basis, the obligation to state reasons, the principle of proportionality, and the principle of subsidiarity.
As for the legal basis, the Commission proposed the text on the basis of Article 114 of the Treaty on the Functioning of the European Union (TFEU). On this point, there is no particular problem for the EU Council’s lawyers, who consider that this article “seems to constitute an appropriate legal basis for the proposal, subject to analysis regarding the measure’s proportionality and subsidiarity”.
However, other points seem more problematic for the Legal Service. Thus, with regard to the grounds for the proposal (provided for in Article 296 of the TFEU), this service considers—as far as the prohibition of seasonal time changes is concerned—that the Commission “in no way explains why this new form of harmonisation was chosen or how it contributes to the proper functioning of the internal market”. Moreover, regarding Member States’ choice to effect the last optional seasonal change or not, lawyers are of the opinion that the proposal “in no way explains how this measure fits into the new form of harmonisation or how it is likely to affect the proper functioning of the internal market”. They thus conclude that the proposal should have stronger grounds.
The Legal Service then reiterates that the Commission has not produced an impact assessment for this proposal. In its analysis, it also notes that the “Court could consider that the choice of the new time regime and Member States’ obligation to choose whether or not to effect the last seasonal change are not sufficiently justified in light of the principle of proportionality”.
Lastly, with regard to compliance with the principle of subsidiarity, the EU Council’s lawyers think that it is “difficult for the legislator to fully assess whether the proposal complies with the principle of subsidiarity”. With regard to both proportionality and subsidiarity, it is notably indicated here that the Commission has not envisaged a suitable intermediate solution to ensure the proper functioning of the internal market.
This note from the Legal Service was examined by experts from the Working Party on Land Transport on Tuesday, 11 June. On the side of the European Parliament, MEPs indicated their position during the first reading last March (see EUROPE 12222/10). (Original version in French by Lucas Tripoteau)