A document leaked to Euractiv shows that the EU Council’s legal service finds the proposed Single Market Emergency Mechanism (SMEI) so problematic vis-a-vis EU law that it might best be scrapped.
Euractiv reports that the unpublished document from the Council Legal Service called for the most important parts of the proposed measure to either be deleted or heavily edited to bring it into compliance with EU law.
The EU Commission proposed the SMEI in 2022 based on the experience at the beginning of the pandemic when member states were scrambling to secure medical supplies for hospitals, from personal protective equipment for staff to respirators for patients.
Among other measures, the SMEI would allow the Commission to monitor stocks of certain goods including those held by private companies; require member states to maintain reserves of the materials and products contained in the regulation; and give the Commission power to force companies to prioritise certain orders in the case of an emergency.
The proposal is still being debated by the Council and the EU Parliament, but it will likely end up significantly changed and pared down, based on the documents leaked to Euractiv.
The news outlet reports that the legal opinion written by the Council Legal Service states that “the proposed measures go beyond what the Court has so far found compatible,” citing case law from the European Court of Justice used by the Commission as the legal basis for the proposed SMEI.
“If the co-legislators nevertheless decide to adopt the proposed measures … they should significantly amend the main provisions of SMEI,” the opinion further stated, according to Euractiv.
Almost all the important aspects of the proposal would have to be redacted, including the subject matter, the objectives, the definitions, and the criteria that would trigger an emergency and the additional oversight from the Commission.
The ‘co-legislators’ are the EU member state governments in the EU Council and the EU Parliament.
The legal opinion gave its harshest criticism to several of the core elements of the proposal—national strategic reserves, the information requests to economic operators, and mandated priority orders. The Council and the Parliament should “delete or significantly amend,” them, according to the legal experts.
The legal opinion argued that the SMEI needed to be much more targeted, according to Euractiv.
Measures in the SMEI to ensure the free movement across borders even in an emergency got a more favourable review by the Council Legal Service, though, according to Euractiv, the opinion stated that those paragraphs also required redrafting “in order to ensure legal certainty”.
Euractiv also saw the council’s draft compromise text, which took up the hardest line drawn by the legal service. The most controversial measures had been deleted, namely, those on strategic reserves on the national level, and priority order mandates coming from the Commission.
Additionally, measures about mandatory reporting by companies to the Commission will be significantly changed, if not simply deleted.
Parliament, however, has made far fewer changes to the Commission’s original text, at least so far.
