Steve Peers

The European Commission recently released its yearly plan, outlining a different approach than previous years. Beyond the typical policy revisions, this Commission aims to introduce fewer new EU initiatives and withdraw more pending proposals.

Is this approach truly different from past Commissions? Comparing this year’s plan to those of previous Commissions offers insights.

In 2005, the incoming Barroso Commission put forward 32 pages of proposals, without mentioning any withdrawals. The 2010 ‘Barroso II’ Commission presented 25 pages, with only five pages dedicated to proposals for that year. The remaining 20 pages covered proposals for the rest of their term, though some, like those regarding labor migration Directives, were introduced in 2010. This 2010 plan also included 58 proposals to be withdrawn, primarily due to becoming outdated.

How does this compare to the 2015 plan? The proposed initiatives list resembles that of 2010: four pages, 23 proposals, versus five pages and 34 proposals. However, the 2010 list only highlighted top priorities, while the 2015 list is supposedly comprehensive. Does this mean the Commission intends to propose less than one new measure per Commissioner this year?

Not necessarily. Examining the details reveals that some of the 23 items encompass multiple proposals. For instance, the immigration policy review mentions both migrant smuggling and the ‘Blue Card’ Directive for highly skilled migrants. While a single proposal could address both, the EU typically proposes separate legal acts. Similarly, plans for labor mobility, the internal market, energy, and the digital single market will involve multiple legislative items, especially for the digital single market, where the plan indicates a ‘package’ of laws.

Furthermore, the 2015 withdrawal list, dubbed the ‘kill list,’ is longer, containing 80 items. While two-thirds are outdated, around 25 are withdrawn for political reasons, either due to a lack of agreement or the Commission’s desire to revise them based on evolving priorities.

The first reason is not unusual; most years, the Commission withdraws proposals facing strong opposition. However, the second reason is uncommon. The Commission justifies it through the principle of ‘discontinuity,’ which is the standard practice in democracies of withdrawing all legislative proposals upon the election of a new legislature.

However, the Commission’s implementation of this principle appears flawed. Typically called the principle of legislative discontinuity, it involves the automatic withdrawal of all pending legislative proposals following an election for a parliamentary chamber. The Commission is applying this selectively, only withdrawing proposals it doesn’t support. Additionally, the principle is grounded in the electoral process leading to a shift in parliamentarians.

This distinction is crucial because it relates to the Commission’s legitimacy in withdrawing these proposals. The Treaties outline the Commission’s power to initiate and amend proposals but are silent on withdrawals. Shouldn’t this power reside with the EU’s legislative chambers, the directly elected Parliament and indirectly elected Council? This has been a theoretical debate, as the Commission’s presumed authority to withdraw proposals has not been challenged. However, a CJEU Advocate-General will soon present their opinion on whether the Commission possesses unrestricted power to withdraw proposals, stemming from a case brought forth by the Council. This opinion is non-binding; the CJEU judges will provide a final ruling next year.

Politically, the Commission’s withdrawal of these proposals might hold weight if they were mentioned during Jean-Claude Juncker’s campaign for Commission Presidency, either during the European Parliament elections or when seeking approval from the Parliament and European Council. Alternatively, these withdrawals might be justifiable if other Commissioners had indicated their intent to withdraw them during their European Parliament hearings. However, it’s difficult to argue that withdrawing proposals on waste or air pollution were central to Juncker’s or the Commission’s appointment campaign.

Some withdrawals are supposedly temporary, as the Commission intends to propose replacements next year. However, it’s unclear if this promise will be kept. Others are conditional, with the Commission giving legislators a deadline for a potential agreement, failing which the proposal will be withdrawn. This tactic empowers the hesitant legislative body, usually the Council, at the expense of the other, typically the European Parliament.

In the case of the maternity leave Directive, this raises the question of balancing feminist ideals with pragmatism. Achieving the extended, fully paid maternity leave desired by a European Parliament majority is politically unfeasible. Should they accept a compromise, any improvement over the current situation? Unlike Solomon’s judgment, legislative objectives can be partially achieved. This particular proposal has been under consideration for six years. While it might pass next year, it will likely involve significant debate.

Barnard & Peers: chapter 3