Fabian Bohnenberger

New mandate, clean slate? The results of the European elections are in and a new five-year term for the EU institutions is about to begin. How do these political changes affect the legislative proposals from the previous mandate?

As is common, EU lawmakers did not conclude their work on many draft laws before the elections. The European Parliament counts 119 pieces of legislation* that the Commission proposed over the last years but that the legislators, Parliament and the Council, have not yet adopted.

What happens to these draft laws now? This post focuses on the rights of the next Commission, the EU’s executive responsible for developing proposals for new legislation. I cover Parliament’s rules on unfinished legislative business here.

The principle of political discontinuity

In short, the incoming Commission has the right to review the proposals that its predecessor has put to legislators. Where existing proposals do not match the new political priorities, the executive has the right to withdraw or amend the drafts. This is known as the “principle of political discontinuity”.

The principle is not spelled out exactly in the EU treaties. However, it is expressed in the so-called Framework Agreement on relations between the European Parliament and European Commission. The second part of Article 39 states:

“The Commission shall proceed with a review of all pending proposals at the beginning of the new Commission’s term of office, in order to politically confirm or withdraw them, taking due account of the views expressed by Parliament.”

This right is exercised. In its first work programme (published in January 2020), the von der Leyen Commission announced the withdrawal of 32 pending legislative proposals.

Withdrawing draft laws can be controversial

The review of pending proposals by a new Commission is a special and generally accepted case of the Commission’s right to withdraw proposals.

More generally, however, withdrawing draft legal acts after the Commission has submitted them to the legislators can be contentious because it affects the distribution of power between the Commission, Parliament and the Council (i.e., the Member States).

Without delving too deep into the EU’s architecture, it comes down to the question: Can the Commission pull the rug under the Parliament and the Council by withdrawing a proposal before they get the chance to make it law?

Safeguarding the institutional balance

To avoid this (undemocratic) scenario, the Commission is required to exercise its right to withdraw draft laws in a way that maintains the “institutional balance” – a fancy way of saying that the EU institutions have to respect each other’s rights as defined in the EU treaties.

Of course, what this means in practice has been subject to legal infighting. It falls to the European Court of Justice to ensure fair play.

The Court’s judgements – a key one is C-409/13 – have led to the introduction of safeguards that, while affirming the Commission’s right to withdraw proposals, make its use more transparent and predictable.

For example, the Commission committed to justify its decision and consult the other institutions before withdrawing a draft law. See point II.9 of the 2016 Interinstitutional Agreement on Better Law-making:

“In accordance with the principles of sincere cooperation and of institutional balance, when the Commission intends to withdraw a legislative proposal, whether or not such withdrawal is to be followed by a revised proposal, it will provide the reasons for such withdrawal, and, if applicable, an indication of the intended subsequent steps along with a precise timetable, and will conduct proper interinstitutional consultations on that basis. The Commission will take due account of, and respond to, the co-legislators’ positions.”

Until what point can the Commission withdraw a proposal?

This hasn’t been fully settled. Without going into detail, the Commission has the power to alter or withdraw its proposal “as long as the Council has not acted” – see Article 293(2) TFEU. In practice, most interpret this as referring to Council adopting the law at first reading.

What to expect this time

The next Commission will be under pressure to slow down (or even roll back) the ambitious regulatory agenda of the previous mandate. It might be tempted – or even promise its supporters in the Parliament and across Member State governments – to sacrifice some outstanding proposals on the altar of EU competitiveness (and re-nomination/election).

Especially Green Deal legislation could come under further pressure. In May, the Commission officially withdrew a proposal aimed at limiting the use of pesticides, which proved controversial with conservative lawmakers and their tractor-owning supporters.

The European People’s Party, on whose support von der Leyen’s second Commission Presidency critically depends, has also long railed against the Nature Restoration Law proposal, demanding that the Commission withdraw it. Council has not yet adopted the law. If the Belgian Presidency cannot convince Member States to pass it until the end of June, the Commission could still bin the draft.

Political transitions make for interesting times.

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(*) This number only includes files under the Ordinary Legislative Procedure, which is now the standard process to adopt most laws.