Tuesday 16 December 2014

Is it different this time? The Commission’s 2015 work programme


Steve Peers

Today the new European Commission announced its first annual work programme. Quite apart from the usual restructuring and renaming of policies, it promises to take a different approach to prior Commissions. In particular, this Commission apparently plans to propose fewer new EU measures and to withdraw many more pending proposals than usual.

But is the Juncker Commission’s approach actually different from the approach of previous Commissions? The best way to test that is to compare today’s work programme to the first work programme of previous Commissions.

The incoming Barroso Commission of 2005 suggested 32 pages of proposals, with no reference to withdrawal of pending measures. In 2010, the incoming ‘Barroso II’ Commission listed 25 pages of proposals, although only five pages concerned proposals that the Commission was definitely planning to make in 2010. The other 20 pages listed those proposals which were planned for the rest of the five-year mandate, although in the end some of those proposals – like two Directives on labour migration – were tabled in 2010 after all. And the 2010 work programme listed 58 proposed measures which were going to be withdrawn, although in all but one case the withdrawals were due to obsolescence.

How does that compare to the 2015 work programme? First of all, the list of planned proposals is similar to that in 2010: four pages, 23 proposals, compared to five pages and 34 proposals five years ago. Admittedly, the 2010 list comprised only the Commission’s biggest priorities, while the 2015 list is supposedly exhaustive, according to press reports. So is the Commission really planning to propose less than one new measure per Commissioner next year?

Of course not. A close look at the fine print reveals that some of the 23 items on the list will actually comprise more than one proposal. For instance, the review of immigration policy mentions both smuggling of migrants and the ‘Blue Card’ Directive on highly-skilled migrants. It would be technically possible to table one legislative proposal addressing both issues – indeed, that would be unremarkable compared to how immigration legislation is drafted in many countries. However, the EU’s tradition is to propose and adopt different legal acts in such cases. Similarly, the plans concerning labour mobility, the internal market, energy and the digital single market will necessarily entail proposing more than one item of legislation. This is particularly obvious as regards the digital single market, where the work programme refers to a ‘package’ of laws.

Secondly, the list of withdrawn proposals for 2015 – already nicknamed the ‘kill list’ – is somewhat longer, totalling 80 items. Two-thirds of these are obsolete, but around 25 of them are withdrawn for more political reasons: either there is no reasonable prospect of agreement, or the Commission wants to redraft them itself in light of changed priorities.

The first reason for withdrawal is hardly unheard of; in most years, the Commission withdraws a couple of proposals which have met with implacable opposition in the European Parliament or (more often) the Council. The second reason for removal is very rare indeed. The Commission justifies it in light of the principle of ‘discontinuity’ – the practice, quite common (perhaps even ubiquitous) in democratic systems, of retiring all legislative proposals when a new legislature is elected.

To be frank, the Commission has rather botched its application of this principle. It’s usually known simply as the principle of legislative discontinuity, and entails the automatic withdrawal of all legislative proposals on the table when a parliamentary chamber is dissolved before an election. The Commission is applying the rule only partially, withdrawing only certain proposals that it disagrees with. In any event, the principle is firmly rooted in the electoral process that leads to a change of (at least some) parliamentarians.

This distinction isn’t simply pedantic, since it goes to the heart of the Commission’s legal and political legitimacy to withdraw these proposals. Legally speaking, the Treaties refer to the Commission’s powers to make and amend proposals, but say nothing about any power to withdraw them. Should that power not rest instead with the EU’s two legislative chambers, which have been respectively directly (the Parliament) and indirectly (the Council) elected? For many years, this has been a theoretical point, since the Commission’s assumption that it has untrammelled powers to withdraw its proposals has gone unchallenged. But this Thursday, a CJEU Advocate-General is due to give his view on whether the Commission indeed has an unlimited power to withdraw its proposals, in a case brought by the Council. (Remember that like any such opinion, it won’t be binding; it will be up to the judges of the CJEU to give a final ruling, sometime next year).

Politically speaking, the Commission could try to claim some legitimacy to withdraw these proposals if they had mentioned during Jean-Claude Juncker’s campaign for the Commission Presidency, either during the European Parliament elections or when he was asking for a majority of the Parliament (and a qualified majority in the European Council) to approve him. Alternatively, these withdrawals might be legitimate if the other Commissioners had stated their intention to withdraw them in their hearings before the European Parliament. But it can hardly be claimed that withdrawal of proposals on waste or air pollution were a central feature of Juncker’s, or the Commission’s, campaign to be appointed.

Some of today’s withdrawals are supposedly not permanent, because the Commission has announced its intention to propose replacement measures next year. But it’s not absolutely certain that the Commission will keep this promise. Others are contingent, because the Commission has given the legislators a deadline to discuss a possible deal, failing which it will withdraw its proposal. It’s an interesting strategy, which will empower the half of the legislature that is reluctant to consider these proposals (usually the Council), at the cost of the other half (usually the European Parliament).

In the case of the maternity leave Directive, it raises the interesting question of how many feminists are also pragmatists. It’s politically impossible to obtain the lengthened maternity leave on full pay that a majority in the European Parliament desire: so should they settle for anything, as long as it’s an improvement on the status quo? Unlike an actual baby (cf the judgment of Solomon), it is possible to obtain only half of one’s legislative objectives – or probably significantly less than that in this case. This particular legislative proposal has been gestating now for six years; it might yet be born next year, but there’ll probably be a lot of shouting first.


Barnard & Peers: chapter 3

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