Luxembourg has expressed strong reservations about the Single Market Emergency Instrument (SMEI) in a response sent to the Czech Presidency of the EU Council and seen by EUROPE on Wednesday 9 November.
“The SMEI proposal raises substantive concerns with respect to its relevance, its European added value and the appropriateness of its Single Market legal basis (Article 114 TFEU)”, says Luxembourg, who had already shown deep scepticism during the September Competitiveness Council (see EUROPE 13032/1).
In respect of the Grand Duchy, which is particularly exposed to any disruption of the internal market due to its geographical specificities, the European Commission’s proposal seems to “explicitly authorise – and even invite – the Member States to introduce Single Market barriers during times of crisis. Such an approach would flaw Treaty principles and create serious tension with the principle of proportionality”.
The European Commission is proposing a system of gradual intervention depending on the gravity of the crisis, which makes it possible to introduce exceptions to the principle of free movement of products and services (Article 17 - see EUROPE 13024/1). Luxembourg fears that the instrument, which was designed primarily for a period of crisis, could become the norm.
Furthermore, the chosen legal basis (Article 114 TFEU) does not correspond to the objectives of the proposal. The EU Court of Justice could therefore invalidate the instrument, undermining the “credibility” of the co-legislators, according to the Grand Duchy.
The fact that the instrument introduces greater transparency in times of crisis does not address the very real problems that arose during the pandemic (see EUROPE 12452/14), according to Luxembourg, for whom any restriction on free movement is “a violation of the Treaty”. National delegations will discuss the instrument once more in a working group on 14 November. (Original version in French by Pascal Hansens)