Action brought on 18 July 2013 — Council of the European Union v European Commission

(Case C-409/13)

2013/C 274/27

Language of the case: French

Parties

Applicant: Council of the European Union (represented by: G. Maganza, A. de Gregorio Merino and I. Gurov, acting as Agents)

Defendant: European Commission

Form of order sought

Pleas in law and main arguments

The Council raises three pleas in law in support of its action for annulment of the Commission decision to withdraw a proposal for a regulation at a late stage of the first reading in the ordinary legislative procedure.

First, the Council submits that the withdrawal of the proposal for a regulation constitutes a serious breach of the principle of the distribution of powers laid down in Article 13(2) TEU and the principle of institutional balance. According to the Council, there is no provision in the Treaties which expressly confers on the Commission a general prerogative right to withdraw a proposal which it has placed before the European Union legislature. However, while the Council does not dispute that a power of withdrawal exists on the basis of Article 293(2) TFEU, exercise of that power is not a matter for the Commission’s discretion; nor may that power be exercised in an abusive manner. The Council argues that, if the withdrawal of a proposal at such an advanced stage in the legislative process were to be recognised as legitimate, it would be tantamount to granting the Commission a form of right of veto vis-à-vis the co-legislators of the European Union. The Commission would thereby be placed on the same level as the co-legislators, which would constitute an abuse of the ordinary legislative procedure provided for under Article 294 TFEU, going above and beyond the Commission’s right under Article 293(2) TFEU to initiate legislation and depriving of practical effect the Council’s right of amendment under Article 293(1) TFEU. According to the Council, it would also be inconsistent with Article 10(1) and (2) TEU, because the Commission would no longer be an institution with an executive function but a participant in the legislative process at the same level as the institutions vested with democratic legitimacy.

Secondly, the Council submits that the withdrawal of the proposal for a regulation also constitutes a breach of the principle of sincere and mutual cooperation under Article 13(2) TEU: (i) the proposal was withdrawn very belatedly; after a great number of tripartite meetings (‘trialogues’) had taken place during the first reading stage, the Commission had nevertheless withdrawn its proposal on the day on which the Parliament and the Council were to initial the agreement which they had reached; and (ii) the Commission had not, before proceeding with the withdrawal, exhausted all the procedural possibilities under the Council’s internal regulations.

Lastly, the Council submits that the contested withdrawal was in breach of the duty under the second paragraph of Article 296 TFEU to state the reasons on which that act of withdrawal was based. According to the Council, the Commission did not provide any explanation for its decision to withdraw; nor did it publish that decision.