How a German politician’s lawsuit may change the EU for good

An individual lawsuit filed by German lawmaker René Repasi against the European Commission over the EU finance taxonomy could result in the right to sue for every EU lawmaker, and possibly shake the European Union’s legal framework to its core.

Repasi, a social democrat MEP from Baden-Württemberg, spoke to Euractiv from his corner office on the 12th floor of the European Parliament.

“Becoming a member of the European Parliament was honestly not part of my life plan,” the German social democrat explained. But when his predecessor, the veteran former vice-president Evelyne Gebhardt, retired in 2022, Repasi accepted the call to replace her in Brussels and the corner office.

A professor of EU law at Rotterdam University, Repasi quickly involved himself in the Parliament’s legal affairs committee. This spring, he filed his first lawsuit, which was rejected by the court of first instance in Luxembourg in June.

Known as T-628/22, his lawsuit has sparked intense debate in the EU’s legal circles. After the first rejection, Repasi turned to the top court, the Court of Justice of the European Union, whose decision is expected at the earliest in the first half of 2024.

If the court accepts his case, this could set a precedent enabling a wave of legal challenges brought by individual lawmakers rather than designated EU institutions, his opponents warn.

But how can a single legal dispute change the EU forever when the EU rules have not changed for years?

EU Taxonomy and right to sue

At the start of his EU term, Repasi found himself in a controversial dispute: the fierce battle over the EU taxonomy – the bloc’s investor guidebook for which technologies can be considered “green”.

At the time, the European Commission declared nuclear power and natural gas sustainable. Repasi wanted the Parliament to oppose the classification, but a majority were quite happy with their part of the nuclear-natural gas compromise. He was outvoted, and the matter was shelved.

Feeling that his rights as a democratically elected representative of the people had been violated, the expert resorted to what he knew best: EU law.

“I sued as an individual MEP,” he explained, knowing that “there are high hurdles associated with that”.

A major shift for the EU

A single EU lawmaker has never successfully taken a case to the EU’s top court because Parliament only has a special right to sue collectively, in its entirety.

If the judges accept his case, they would essentially change that, marking a major shift in the EU framework and opening up the possibility of more than 700 lawmakers to take individual legal action.

If the court “were to allow individual MEPs to challenge delegated acts, the CJEU [Court of Justice of the EU] would quickly be flooded with such actions,” warned Michal Ovádek, who teaches EU law at London’s UCL.

For now, the case was dismissed as inadmissible in the first instance, according to a statement from Luxembourg.

But the very fact that the court issued this separate statement means that it, too, is aware of the potential impact on Europe, Repasi stressed.

All or nothing

All eyes are now on the judgement of the second-instance court, which has a rich tradition of shaping the EU with its judgements.

Repasi relies on his key arguments: that the Parliament – and not the Commission – should have decided whether nuclear power and natural gas should be declared sustainable.

Initially, this decision was too delicate for Parliament, so it was left to the European Commission via a delegated act – a process requiring no negotiations with Parliament or Council, which the Commission’s experts usually use to regulate something considered too technical in the legislative process.

But according to Repasi, this was a mistake.

After a lengthy tug-of-war on this admittedly tricky issue, “a ‘dirty deal’ was struck to satisfy Germany and France: nuclear power in exchange for natural gas,” the Social Democrat said.

At the time, he stressed that the Commission wanted to take account of the two influential member states “so that they did not neutralise each other”. The European Parliament felt ignored, not least because the decision was announced just minutes before the New Year.

Regarding the Commission’s decision, the German politician criticised the lack of common sense.

“Can one seriously say with common sense that energy production from nuclear and natural gas is a sustainable economic activity?” Repasi wondered, pointing to violating the “do no significant harm” principle.

“Moreover, the European Court of Justice has already ruled that essential parts of legislation, political decisions, cannot be part of delegated acts,” he added.

On top of that, the Commission can only take very technocratic decisions, the German MEP argued.

“The opposition to the taxonomy alone, the fact that the act was sent a few minutes before the start of the new year, shows that this is a political issue. There are, therefore, many hooks and eyes that make this delegated act qualitatively different from a legislative act.”

He added that the Commission has “violated parliamentary rights” by deciding independently.

Protecting MEPs in the minority

When parliamentary rights are violated, it affects those who sit on the benches. “After all, it is the elected MPs as a whole who transfer their legitimacy to the parliament as an institution,” Repasi explained.

“One can just construct from this the right of a directly elected MP to legislate properly,” he added.

That would be the case in most countries, “but in the European Parliament, there are no minority rights,” he said, referring to the procedure by which a majority is needed to set up a committee of inquiry in the EU parliament.

“I don’t think this is compatible with the principle of representative democracy.”

In other words, Repasi wants to use this roundabout way to force the EU Parliament to introduce minority protection.

If the judges in Luxembourg accept his complaint, “in the future, every single MEP could take action against the European Commission”.

“Then we as parliament will have to ask ourselves the question: Don’t we want to write minority rights into the Rules of Procedure to get MEPs’ complaints under control?”

[Edited by Nathalie Weatherald/Zoran Radosavljevic]