Committee on Legal Affairs The Chair. Ms Adina-Ioana Vălean Chair Committee on the Environment, Public Health and Food Safety BRUSSELS

Transcription

1 European Parliament Committee on Legal Affairs The Chair Ms Adina-Ioana Vălean Chair Committee on the Environment, Public Health and Food Safety BRUSSELS Subject: Opinion on the legal basis of the proposal for a Directive of the European Parliament and of the Council amending Directive 2009/33/EC on the promotion of clean and energy-efficient road transport vehicles (COM(2017)0653 C8-0393/ /0291(COD)) Dear Madam Chair, By letter of 6 February 2019 you asked the Committee on Legal Affairs pursuant to Rule 39(2) to consider whether the legal basis of the above Commission proposal was appropriate. The committee considered the above question at its meeting of 4 March I - Background The proposal aims to contribute to the sustainability and competitiveness of road transport, through increased public procurement of clean vehicles by effectively support clean vehicle market uptake and CO2 and air pollutant emission reductions, while preserving growth and competitiveness in the transport sector. The proposal seeks to extend the scope of the Clean Vehicles Directive 1 and to simplify its implementation, while creating long-term market demand certainty. The legal basis of the proposal as presented by the Commission was Article 192 of the Treaty on the Functioning of the European Union (TFEU). Following the negotiations on the dossier 1 Directive 2009/33/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of clean and energy-efficient road transport vehicles (OJ L 120, , p. 5). AL\ docx PE v01-00 United in diversity

2 the three institutions agreed that the legal basis should be limited to the first paragraph of Article 192 TFEU. The provisionally agreed text, which included 192(1) TFEU as legal basis, was confirmed by Coreper on 20 February 2019 and voted in VI on 27 February II - Relevant Treaty Articles The articles below were presented as the legal basis of the Commission s proposal. Article 192 TFEU, which is found under Title XX on the environment, has the following wording (emphasis added): Article 192 (ex Article 175 TEC) 1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt: (a) (b) provisions primarily of a fiscal nature; measures affecting; town and country planning, quantitative management of water resources or affecting, directly or indirectly, the availability of those resources, land use, with the exception of waste management; (c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply. The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph. PE v /7 AL\ docx

3 3. General action programmes setting out priority objectives to be attained shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions. The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be. 4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy. 5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of: temporary derogations, and/or financial support from the Cohesion Fund set up pursuant to Article 177. Article 191 TFEU, to which reference is made in Article 192(1) TFEU and which is likewise found under Title XX on the environment, has the following wording (emphasis added): Article 191 (ex Article 174 TEC) 1. Union policy on the environment shall contribute to pursuit of the following objectives: preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing AL\ docx 3/7 PE v01-00

4 Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union. 3. In preparing its policy on the environment, the Union shall take account of: available scientific and technical data, environmental conditions in the various regions of the Union, the potential benefits and costs of action or lack of action, the economic and social development of the Union as a whole and the balanced development of its regions. 4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements. III - Case-law on legal basis It is settled case law of the Court of Justice that "the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure" 2. The choice of an incorrect legal basis may therefore justify the annulment of the act in question. Whilst the choice of the legal basis should in principle not depend on the choice made for earlier legislative acts, according to settled case-law the legal basis for a measure must be determined having regard to its own aim and content and not to the legal basis used for the adoption of other EU measures that might, in certain cases, display similar characteristics. However, where a legislative act is designed merely as a supplement or a correction of another legislative act, without altering its original goal, the EU legislature is fully entitled to base the latter act on the legal basis of the first act. 3 IV. Aim and content of the proposed directive The proposal aims at tackling serious shortcomings in the Clean Vehicles Directive 4 which 2 Case C-45/86, Commission v. Council (Generalised Tariff Preferences) [1987] ECR 1439, para. 5; Case C-440/05 Commission v. Council [2007] ECR I-9097; Case C-411/06 Commission v. Parliament and Council [2009] ECR I See judgment of 21 June 2018, Poland v Parliament and Council, C-5/16, EU:C:2018:483, p. 49, p. 69 and case-law cited. 4 See footnote 1. PE v /7 AL\ docx

5 were identified in an ex-post evaluation carried out in 2015, in particular relating to insufficient scope and lack of a definition. Provisions for vehicle purchase were also found to be either vague or overly complex. The general objective of the proposal is to increase the market uptake of clean, i.e. low- and zero-emission vehicles, in public procurement and hence to contribute to reducing overall transport emissions. The proposed revision aims at ensuring that the Directive covers all relevant procurement practices, that it provides clear, long-term market signals, and that provisions are simplified and effective. It thereby aims to increase the transport sector s contribution to the reduction of CO2 and air pollutant emissions and to competitiveness and growth in the transport sector, by also better aligning public procurement policies in the Member States with the ultimate aim to enhance their market impact. The text of the provisional agreement following interinstitutional negotiations consists of 35 recitals, 4 articles and an annex consisting of 4 tables. Recitals 1-4 set out the policy background to the proposed act, including the Enery Union, the Energy and Climate Policy Framework, the European Strategy for Low-Emission Mobility and the UN Framework Convention on Climate Change. Recital 4 stresses that the proposal forms part of a package of proposals which aim at contributing to the Union s drive towards low-emission mobility in parallel with the further development of public transport, as a way to reduce road congestion and consequently to improve air quality and reduce emissions. Recitals 5-7 set out the technological and regulatory context of the proposal. Recitals 8-16c elaborate on the substantive details of the act, including on minimum procurement targets, forms of contracts, definitions of clean, zero-and-low, light-duty and heavy-duty emission vehicles, vehicles excempt from procurement, Member States flexibility to distribute efforts to meet minimum targets within their territory and to impose similar requirements to private operators and services, life-cycle costing, targeted public support measures, technical and financial advisory services to local authorities and operators, and sustainable urban mobility plans. Recitals set out the background to the conferral of implementing powers to the Commission, review of the implementation, applicability of procurement targets to the Union institutions, subsidiarity and proportionality and explanatory documents. Article 1 contains the amendments to Directive 2009/33/EC. The first article of the amended Directive, on subject matter and scope, has the following wording: This Directive requires contracting authorities and contracting entities to take into account lifetime energy and environmental impacts, including energy consumption and emissions of CO2 and of certain pollutants, when procuring certain road transport vehicles with the objective of promoting and stimulating the market for clean and energy-efficient vehicles and improving the contribution of the transport sector to the environment, climate and energy policies of the Union. AL\ docx 5/7 PE v01-00

6 The articles on scope, definitions and minimum procurement targets are expanded upon in keeping with the aim set out in the recitals. The articles on methodology for the calculation of operational lifetime costs and adaptations to technical progress in the original directive are deleted. An article on best practice exchange is added. The article on reporting and review is amended, including by conferring implementing powers to the Commission to set out the format of and transmission arrangements for Member States reports on the implementation of the Directive. Article 2-4 contain final provisions on transposition, entry into force and addressees. The annex includes four tables with information for the implementation of minimum procurement targets. V - Determination of the appropriate legal basis It should first be noted that the Clean Vehicles Directive, which is being amended by the proposal, was based on Article 175(1) TEC, which was the predecessor of Article 192(1) TFEU. As described above, the aim and content of the provisional agreement on the directive at hand is to promote and stimulate the market for clean and energy-efficient vehicles and improving the contribution of the transport sector to the environment, climate and energy policies of the Union. This is done by addressing identified shortcomings of the amended directive when requiring contracting authorities and contracting entities to take into account lifetime energy and environmental impacts, including energy consumption and emissions of CO2 and of certain pollutants, when procuring certain road transport vehicles. The directive at hand is therefore clearly designed as a correction and supplement of the amended directive, without altering its original goal, and the EU legislature is therefore, in accordance with the case-law quoted above, fully entitled to base the latter act on the legal basis of the first act. Article 191 TFEU specifies that the Union policy on the environment shall contribute to pursuit of the objectives of preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, and promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. Article 192(1) TFEU sets out that the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall decide what action is to be taken by the Union in order to achieve those objectives referred to in Article 191 TFEU. Article 192(2) TFEU provides for a special legislative procedure, in the form of a derogation from Article 192(1) TFEU, according to which the Council acts unanimously to adopt provisions on fiscal matters, town and country planning, water resources, land use, and energy PE v /7 AL\ docx

7 sources and supply 5. Paragraphs 3-5 of Article 192 TFEU relate to general action programmes, implementation thereof and financing under the Union s environment policy. Since the directive at hand sets out action to be taken in order to achieve the objectives in Article 191 TFEU and do not touch upon any of the matters listed in paragraphs 2-5 of Article 192 TFEU, only the legal basis provided for in Article 192(1) TFEU is relevant for the directive. It therefore needs to be specified that the legal basis for the provisional agreement is limited to the first paragraph of Article 192 TFEU. VI - Conclusion and recommendation In the light of the foregoing analysis Article 192(1) TFEU constitutes the proper legal basis for the directive. At its meeting of 4 March 2019 the Committee on Legal Affairs accordingly decided, by 18 votes to 0, with 1 abstention 6, to recommend maintaining Article 192(1) TFEU as the legal basis of the provisionally agreed text, as voted in the Committee on the Environment, Public Health and Food Safety on 27 February Yours sincerely, Pavel Svoboda 5 As the Legal Service points out, it follows from case-law that since Article 192(2) TFEU is an exception, it must be interpreted strictly, see the Opinion of the Legal Service, SJ-0774/17, point 9. 6 The following were present for the final vote: Pavel Svoboda (Chair), Jean-Marie Cavada, Mady Delvaux (Vice-Chair), Max Andersson, Joëlle Bergeron, Kostas Chrysogonos, Pascal Durand, Heidi Hautala, Sajjad Karim, Sylvia-Yvonne Kaufmann, Evelyn Regner, Rainer Wieland, Tadeusz Zwiefka, Karoline Graswander-Hainz (pursuant to Rule 200(2)), Agnieszka Kozłowska-Rajewicz (for Francis Zammit Dimech pursuant to Rule 200(2)), Philippe Loiseau (for Gilles Lebreton pursuant to Rule 200(2)), Alex Mayer (for Mary Honeyball pursuant to Rule 200(2)), Andrey Novakov (for Emil Radev pursuant to Rule 200(2)) and Godelieve Quisthoudt-Rowohl (for Axel Voss pursuant to Rule 200(2)). AL\ docx 7/7 PE v01-00