Although many people do not know it, the European Commission can and frequently does withdraw regulatory proposals it has already published. It should withdraw its controversial, unbalanced proposal on standard-essential patents (SEPs) next.  

According to the European Parliament, the Commission withdrew 133 legislative proposals brought forward under the ordinary legislative procedure between 2005 and 2020. That’s almost 10% of the total!  

There are three main reasons the Commission might withdraw a proposal:

1. The proposal might be outdated.
2. There might be lack of political agreement.
3. Amendments by the Parliament or Council might cause significant distortions from the Commission’s original intent. This is because circumstances can change, legal or technical issues can be discovered, the Commission’s political priorities can change, or an impact assessment may be determined to have been flawed, leading to a misguided basis for legislation. 

As we have noted in previous articles, there are many good reasons for the Commission to withdraw its SEPs proposal. 

1. First, the study on which the Commission says it based its proposals found no objective evidence to justify the SEPs proposal or that regulation was needed or appropriate.
2. Litigation related to SEPs has been declining for years.  
3. Although the Commission has attempted to justify its SEPs proposal as helping SMEs, a close look at the data shows that this is not the case.  
4. We have already shared many more reasons that the SEPs proposal is so badly flawed that amendments to the proposal cannot fix its failures. 

The legal route to withdrawal 

The European Commission holds the formal right to withdraw a legislative proposal and needs to defend that, but the European Parliament and European Council can drive that decision. For example, the EU’s co-decision partners may display implacable opposition. They can also simply refuse to move forward with a proposal. They have done so in the past.  

The Commission most often withdraws legislative proposals when a new Commission takes office. This helps it better reflect changed political priorities. The 2010 Framework Agreement on relations between the European Parliament and the European Commission spells the options out: “[t]he Commission shall proceed with a review of all pending proposals at the beginning of the new Commission’s term of office, in order to politically confirm or withdraw them, taking due account of the views expressed by Parliament.” [Paragraph 39.]  

In light of this, the European Parliament and the European Council should ask the Commission to withdraw its proposal in order to perform a more detailed analysis. That analysis could identify if there are any problems that can objectively be said to cause market failure and therefore warrant new regulation. The context of global innovation and trade should also be factored into that review.