Being proposed by the European Commission are two regulations. The first of which will impose a 5% sales tax on ticket prices for journeys between Member States, and will be adopted under Article 113 TEFU. MEPs are concerned that the adoption of this regulation will discourage passengers of low incomes from exercising their rights of free movement between Member States. However, the British government remains in favour of the regulation.
The second regulation will prevent coach operators from imposing fuel surcharges on passengers who have purchased tickets in advance for journeys between Member States, and is to be adopted under Article 114(1) TFEU. However, in the event of an increase in the oil price, the client currently reserves the right to impose fuel charges of up to 10% of original ticket prices. Though the British government opposes this regulation, MEPs support the regulation.
Due to the current economic climate and rising oil prices, the client has expressly stated their interest in the blocking of both regulations specified above, but remains unsure whether the opposition of MEPS to the first regulation, and the opposition of the British government to the second regulation, will be sufficient in doing so.
DISCUSSION
Although the Commission proposes and in turn, supports the two regulations specified above, this does not mean that the implementation of the two regulations cannot be stopped.
The First Regulation
The first regulation is to be adopted under Article 113 TFEU, which prescribes that the Council, in unanimity, must act in accordance with a special legislative procedure and ‘after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition’.
Therefore, it can be assumed that the special legislative procedure referred to in Article 113 TFEU is that of ‘consultation’. This procedure requires the Commission to submit its proposal to the Council which will then consult Parliament. However, although parliament must be given the opportunity to express its opinion regarding the regulation before the Council makes a final decision, the Council can ignore Parliament’s opinion and adopt the regulation. Therefore, the opposition of MEPs to the first regulation is not sufficient to block its implementation. IEC would need to lobby support from other participants in the legislative process who do have the power to block it, namely the European Court of Human Rights (ECHR). This can be executed as UK citizens, in theory, can take the UK government to the ECHR in a situation where the UK government has taken actions which infringe upon the human rights of its citizens.
Although the European Convention of Human Rights is entirely separate from EU Law, all Member States of the EU are signatories to the Convention, therefore, its principles can be said to be common among all Member States. Thus, any provisions of the Convention may be invoked before the ECJ if done so in the context of a matter of EU Law. The ECJ will then apply and respect the Convention’s provision. The principle of proportionality, a principle recognised and applied by the ECJ, and of which Article 5 TEU now provides a Treaty basis for, prescribes that ‘the content and form of the Union’s actions shall not exceed what is necessary to achieve the objectives of the Treaties’. The ECJ has made this principle an important element of EU Law in relation to the free movement of persons and goods.
With the argument that the adoption of this regulation will disregard the principle of proportionality and thus, neglect citizens’ right of freedom of movement, the IEC could potentially block the first regulation.
The Second Regulation
Article 114(1) TFEU prescribes that the European Parliament and the Council must act in accordance with the ordinary legislative procedure and ‘after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market’.
Therefore, following the ordinary legislative procedure: once the Commission submits a proposal to the Council and Parliament, the European Parliament will then adopt a position (in the form of a draft act) on the proposal and send it to the Council. If the Parliament’s position is approved by the Council, the act will then be adopted. If Parliament’s position is not approved, the Council will adopt its own position and send it to Parliament. If then, within three months, the Parliament approves the Council’s position, the Council’s position will be adopted as the act. If after three months, Parliament rejects the Council’s position, the proposed act must be deemed not to be adopted. If, however, Parliament proposes amendments to the Council’s position, the amended text will then be sent to the Council and the Commission.
If within three months of receiving Parliament’s amendments the Council acting on a QMV, approves all the amendments, the regulation will be adopted. However, if the Council does not approve all the amendments, then the Conciliation Committee will be conceived with the objective to reach an agreement in the form of a ‘joint text’. If an agreement is not convened within 6 to 8 weeks, the act is deemed not to have been adopted.
Within this procedure, Parliament and the Council share legislative power and it is designed to prevent a measure from being adopted without the approval of both the Parliament and the Council as it is based on ‘co-decision’. Therefore, the British government, as a member of the EU Council who is opposed to the second regulation, can block it in its original proposed form. This can be done by simply voting against the regulation and lobbying other governments of the EU Member States to ensure that at least 55% of the vote (also referred to as the Qualified Majority Vote, or QMV for short) is against the regulation. This will be sufficient as the Council’s decision regarding the regulation (whether the Council approves it) is reliant on the QMV. If the British government manage to influence the vote, it can then continue to block any subsequent amendments to the regulation, driving the ordinary legislative process to the point where a ‘joint text’ is inconceivable, deeming the regulation not to have been adopted.
Conclusion
On the analysis of these facts, it can be said that despite the Commission proposing the two regulations specified above this does not mean that the implementation of the two regulations cannot be stopped, provided it is done so following the said legal recommendations mentioned above. It is not certain whether the use of the specified recommendations will result in a successful blocking of the first and second regulations, but nevertheless these recommendations appear to be the best possible routes.