EPSU v Commission

The case concerned the Commission’s refusal to bring forward a social partner agreement to the Council for adoption in the form of a Directive based on the provision in Article 155§2 TFEU. EPSU argued that when the social partners are representative and when they make a joint request to the Commission, the Commission has limited discretion, essentially a check for legality of the Agreement, and then it must transform the agreement into a directive for the Council to decide upon.

The Court of Justice of the European Union (CJEU) found that obliging the Commission to put forward the Agreement to be adopted as a Directive would imply giving social partners the right of initiative which they do not have; reference was made by the CJEU to the fact that neither the European Parliament nor the EU Council have the right of initiative. The CJEU ruled that it is the role of the Commission to determine what it is appropriate to propose having regard to political, economic and social considerations but did not provide any further guidance on the limits to the exercise of that discretion. The CJEU furthermore ruled that the judicial review of such decisions is and must be limited as the Commission will have already conducted or will conduct complex assessments and has to take account of potentially divergent interests and to take decisions involving policy choices that have regard to political, economic and social considerations.