A ruling by the Court of Justice of the European Union has shone a spotlight on whether the European Commission might have broken the law when it withdrew the circular economy package.
In a case put in front of the Court on macro-financial assistance to third countries, the Council of the European Union supported by 10 countries including the UK, challenged the decision of the Commission to withdraw a framework on this policy.
While the Court ruled in favour of the Commission and its right to withdraw proposals that it had made, the Court set out three principles that must be considered when withdrawing legislation according to European law.
The Court ruled that the Commission had to give the Parliament and the Council the reasons for its withdrawal and that this must include cogent evidence or arguments. It said that withdrawal decisions must be subject to a judicial review in the form of actions for annulment.
Secondly, the Court said that the principle of democracy must be considered to ensure the balance of powers among the institutions should be respected.
Finally, the Commission would need to consider whether the principle of ‘sincere cooperation’ between EU institutions has been breached due to the manner of withdrawal.
Potentially, this opens up the possibility that individual Member States, the European Parliament or Council of the European Union could take the European Commission to court to consider whether the withdrawal of the circular economy package was legal.
However, a time limit of two months to request the case at the Court following the initial decision is imposed, which leaves just two weeks for this action to be taken.
In his blog University of Essex professor of EU and human rights law Steve Peers suggested that the withdrawal of the circular economy package could be challenged.
He said: “It seems implicit in the judgment that the Commission cannot simply argue that it has changed its mind, otherwise judicial review would have no purpose. There must be substantive reasons justifying that change of mind.
“Would it be sufficient that there is a new Commission? This is obviously a live issue, given that the Juncker Commission recently withdrew a number of proposals (for instance the circular economy proposals) on the grounds that it had changed its legislative priorities, and wished to start the process from scratch.
“At first sight, since the proposals can always be redrafted during the legislative procedure, this is not a sound enough reason to withdraw a proposal, in light of today’s judgment – and there is still time to bring an annulment action against these withdrawals.
“There might conceivably be an argument that a new Commission has more flexibility to withdraw proposals – but that begs questions as to whether it has a genuine democratic mandate, in particular if the Commission President did not campaign on the basis that the proposals in question should be withdrawn.”