European Citizens’ Initiative: Full General Courtroom Rules On The Commission’S Obligation To Laissez Passer Reasons For Refusing To Register Proposals
May 28, 2018
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Anastasia Karatzia, Assistant Professor inward European Union law, Erasmus School of Law
Introduction
On Fri the tertiary of February, the General Court (GC) annulled for the first off fourth dimension a Commission Decision refusing registration of a proposed European Citizens’ Initiative (ECI), on the terra firma that the Commission infringed its duty to give reasons for its decision. Minority SafePack is a curt judgment concerning procedural matters yet at this early on phase of the ECI, which was established inward 2012, whatever judgment clarifying the applicable legal framework is worthy of attending from those interested inward the ECI in addition to to a greater extent than to a greater extent oft than non inward the opportunities for citizens’ participation inward European Union lawmaking.
For those unfamiliar alongside the topic, the ECI is an musical instrument that allows European Union citizens to asking the Commission to consider an thought as a possible set down for a legislative proposal. Its legal framework consists of Articles 11(4) TEU, 24 TFEU, in addition to Regulation 211/2011 (the ECI Regulation) which sets out the detailed physical care for for bringing an ECI. The organisers of an ECI receive got 1 twelvemonth to collect 1 one chiliad 1000 signatures supporting their thought inward lodge for it to hold out considered yesteryear the Commission, which ultimately has the discretion to respond.
The first off footstep inward the entire physical care for is to submit an ECI proposal to the Commission for registration. An ECI cannot hold out registered yesteryear the Commission (i.e. organisers cannot start collecting signatures) if it proposes activity that ‘falls plainly exterior the competences of the Commission to suggest legislation’ (Article 4(2)(b) of the ECI Regulation). If the Commission refuses to register an ECI, it is obliged nether Article 4(3) of the ECI Regulation to inform the organisers of the reasons for such refusal. The Commission sends a missive of the alphabet of reply to the organisers, which it in addition to so publishes inward the ECI website. Generally speaking, this so-called ‘legal admissibility test’ has been the bailiwick of academic analysis in addition to word since the commencement of the ECI[1], with stakeholders oft arguing that the examine is an obstruction to the effectiveness of the ECI.
In July 2013, the members of the Federal Union of European Nationalities (FUEN) (hereafter ‘ECI organisers’) submitted their proposal for an ECI entitled ‘Minority SafePack – One 1 chiliad 1000 signatures for multifariousness inward Europe’, which they characterised as ‘the most of import initiatory of the minorities inward Europe inward recent decades.’ ‘Minority SafePack’ proposed European Union activity inward numerous policy areas aiming to meliorate ‘the protection of persons belonging to national in addition to linguistic minorities in addition to strengthen cultural in addition to linguistic multifariousness inward the Union.’ In September 2013, the Commission decided to turn down registration of the said ECI on the set down of Article 4(2)(b) of the ECI Regulation. It is the legality of this determination that the ECI organisers challenged earlier the GC nether Article 263 TFEU.
Legal & Factual Background
According to Article 4(1) of the ECI Regulation, organisers must submit their ECIs through the online Commission register yesteryear providing the data specified inward Annex II of the ECI Regulation. Annex II requires the next information: the title, bailiwick matter, in addition to objectives of the proposed ECI; the Treaty provisions considered relevant yesteryear the ECI organisers for the proposed ECI; personal details of the ECI organisers; in addition to all the sources of funding for the ECI at the fourth dimension of registration. The word bound for the description of the proposed ECI’s bailiwick affair in addition to objectives are, respectively, 200 characters (approx. 190 words) in addition to 500 characters (approx. 430 words).
Notably for the purpose of our discussion, Annex II of the ECI Regulation allows organisers to furnish an annex to their registration shape alongside additional data on the subject, objectives, in addition to background to the proposed ECI; in addition to the organisers are as good allowed to submit a draft act. The organisers of ‘Minority SafePack’ chose to submit a document alongside farther detailed data most their proposed ECI. The document ready out 11 proposed legal actions (incl. a Regulation in addition to a Council Directive) inward vi areas: language, education, in addition to culture; regional policy; participation; equality; media; in addition to back upward for minority communities. It as good includes a so-called ‘saving clause’, asking the Commission to consider each of the 11 proposals separately on their ain merits, in addition to to register solely utilisation of the ECI if it considered that solely to a greater extent than or less of the proposals were deemed to hold out inadmissible (see paras 25-26).
In the instance earlier the GC, the first off declaration of the applicants concerned an alleged infringement yesteryear the Commission of the essential procedural requirement to give reasons. The applicants contested the lack of an explanation yesteryear the Commission as to which of the 11 acts suggested yesteryear the Initiative failed to comply alongside Article 4(2)(b) of the ECI Regulation in addition to as to why this was so. To that effect, they argued that the Commission infringed Article 296(2) TFEU in addition to Article 4(3) of the ECI Regulation. Moreover, they complained that the Commission failed to explicate its seat that the ECI Regulation does non allow for the registration of at to the lowest degree a utilisation or parts of a proposed ECI. Indeed this seat of the Commission is neither explicitly stated inward the ECI Regulation, nor farther explained inward the missive of the alphabet of reply. Moreover, the applicants as good argued that none of the topics for which the Commission was asked to submit a proposal plainly vicious exterior the framework of the Commission’s powers to submit a proposal for a legal human activity (paras 8-12).
The primary counter-argument of the Commission was that its determination stated the primary reasons for refusing the registration on the set down of the bailiwick affair of the proposed ECI as stipulated inward the registration form. Any additional data provided yesteryear the organisers (e.g. the additional document alongside the specific ECI proposals) was solely indicative in addition to informative, in addition to could non hold out seen as expanding or limiting the bailiwick affair of the ECI. The Commission stressed that it is non obliged to explicate the reasons behind its seat that Article 4(2)(b) of the ECI Regulation does non allow partial registration of an ECI (paras 13-14).
The General Court’s judgment
With ample references to its judgment inward the first off ECI-related case, namely Anagnostakis v Commission (which concerned the relief of Greek debt), the GC began yesteryear reiterating the twofold purpose behind the obligation of European Union Institutions nether Article 296(2) TFEU to give reasons for their decisions (para 15). This obligation aims (i) to ensure that the somebody concerned has sufficient data to determine whether the determination is well-founded; and, (ii) to enable the exercise of judicial review over the reasoning of the relevant determination yesteryear the European Union Courts. In the context of the ECI, this obligation is given specific appear inward Article 4(3) of the ECI Regulation.
Subsequently, the GC explained that the requirement to give reasons must hold out assessed vis-à-vis the nature of the measure, as good as the content of the mensurate in addition to the nature of the reasons given yesteryear the European Union Institution. It acknowledged that the reasoning does non receive got to explicate all the details behind the relevant decision, but the extent of the obligation to give reasons needs to hold out assessed inward the lite of the context of each instance (para 16). In the instance at hand, the GC explained the context as follows: Article 24(1) TFEU gives citizens a right to submit an ECI (see Anagnostakis para 26), in addition to a determination refusing registration of an ECI may impinge upon the effectiveness of this right. Therefore a Commission determination refusing registration ‘must expose clearly the grounds justifying the refusal’ inward lodge to enable the citizen whose ECI was rejected to sympathise the dissimilar reasons for the refusal in addition to appraise it accordingly (paras 17-18).
It is on this set down that the GC in addition to so went on to assess the reasons given yesteryear the Commission for the refusal to register ‘Minority SafePack’ (see as good para 22). The Commission decision ready out iii curt reasons for the refusal. Firstly, fifty-fifty though Article 2 TEU refers to the honor for the rights of persons belonging to minorities as 1 of the values of the European Union referred to inward Article 2 TEU, in that place is no legal set down for the adoption of legal acts to this end. Secondly, Article 3(3) TEU in addition to Article 21(1) of the Charter as good cannot hold out used as legal set down for European Union action. It should hold out noted hither that the additional document submitted yesteryear the organisers proposed xx legal bases for the suggested actions. Thirdly, although to a greater extent than or less of the acts requested inward the Annex to the ECI could autumn inside the framework of the Commission’s powers, the ECI Regulation does non furnish for the registration of utilisation or parts of a proposed initiative.
According to the GC, fifty-fifty though the Commission stated the set down for the refusal (i.e. Article 4(2)(b) of the ECI Regulation), the Commission’s reasoning was plainly inadequate. The Commission failed to seat inward whatever agency which of the 11 proposals vicious exterior the framework of its powers, in addition to failed to give whatever reasons supporting its assessment (para 27). As a result, the organisers were prevented from identifying the proposals which did non comply alongside Article 4(2)(b), in addition to from agreement the reasons behind this conclusion. They were as good impeded from re-submitting a novel ECI proposal, as they did non receive got plenty data most the types of acts that would receive got been accepted yesteryear the Commission. The lack of sufficient reasons as good prevented the GC from assessing the legality of the Commission’s response. At a to a greater extent than full general level, the lack of a consummate declaration of reasons discouraged citizens’ participation inward democratic life in addition to was contradicted the objective of the ECI to brand the European Union to a greater extent than accessible to citizens (para 29).
In addition, the GC reiterated its ruling inward a previous ECI-related instance - Izsák in addition to Dabis v Commission (currently on appeal) - that the Commission should receive got considered the data provided inward the organisers’ annex as existence as of import to the mandatory data required yesteryear Annex II of the ECI Regulation. According to the GC, Annex II of the ECI Regulation gives a right to the organisers to submit additional data to the Commission. Since Annex II has the same binding forcefulness as the ECI Regulation, the Commission - ‘in accordance alongside the regulation of audio administration’ (para 32) - has a duty to consider whatever additional data inward the same agency as it considers the mandatory data required yesteryear Annex II. Therefore, the Commission’s replies must include the reasons behind the refusal of an ECI inward lite of all the data submitted yesteryear ECI organisers.
Comment
At first off sight, the judgment is expert tidings for time to come ECI organisers, as it recognises the endeavour needed to position together a legally audio ECI proposal, as good as the limitations inward doing so solely through the mandatory data required yesteryear Annex II. Had the GC sided alongside the Commission’s position, organisers may receive got found themselves inward the seat where they would invest fourth dimension in addition to endeavour into writing a proposal stipulating specific legal bases solely for the Commission to in addition to so say that it was non obliged to justify its views on the additional data in addition to the draft legal acts submitted yesteryear the organisers. The Commission itself acknowledges that it takes into consideration all the possible legal bases inward considering whether a proposal meets the atmospheric condition for registration (para 30), so it should non hold out an onerous business to expand on its rationale vis-à-vis the specific proposals of organisers.
Upon closer inspection, it would appear that the GC’s finding inward this in addition to inward previous ECI-cases is non necessarily or ever helpful for ECI organisers. This observation becomes apparent when 1 looks at the previous instance of Iszak in addition to Dabis, which concerned the refusal yesteryear the Commission to register a proposed ECI named ‘Cohesion policy for the equality of the regions in addition to sustainability of the regional cultures.’ Interestingly, the applicants inward that instance made the same declaration as the 1 made yesteryear the Commission inward Minority SafePack: additional data should non hold out given the same weight yesteryear the Commission as that given on mandatory information. The GC disagreed alongside the applicants, finding that ‘the “Information ready out inward Annex II” to which Article iv of the [ECI] Regulation refers, is non limited to the minimum data which must hold out provided inward the register nether that Annex.’ In the persuasion of the GC, this finding does non depend on whether or non the additional data was or was non inward the applicant’s interest.
It seems, therefore, that the Court’s judgment could play out inward 2 ways for potential ECI organisers. On the 1 hand, ECI organisers may hold out able to rely on it to challenge the Commission’s reasoning where the latter has non adequately dealt alongside the additional data submitted inward the registration stage. On the other hand, the Court’s finding volition likely non hold out peculiarly helpful for ECI organisers whose ECI mightiness receive got been accepted if solely the mandatory data had been submitted, but was rejected because of the additional information.
On a terminal note, it is rather unfortunate that the GC did non clarify 1 other procedural aspect of the ECI. As mentioned above, the Commission stated inward its determination that an ECI alongside solely to a greater extent than or less objectives fulfilling the criteria of Article 4(2)(b) cannot hold out registered. The GC left opened upward the query whether this interpretation of the ECI Regulation, which is non specified anywhere inward the ECI legal framework, is legally sound. In para 34, the GC held that it is non necessary to dominion on this question, confining itself to finding that the Commission failed to comply alongside its obligation to state reasons. This could hold out seen as implying that the Commission may demand to justify its interpretation of Article 4(2)(b) of the ECI Regulation, but this finding does non pick out away from the query of whether the Commission’s interpretation of Article 4(2)(b) is correct. Let’s assume, for example, that the Commission does, indeed, explicate the rationale behind its interpretation of Article 4(2)(b) alongside regard to partial registration. This would non automatically hateful that the interpretation is legally audio inward the lite of the Treaty Articles 11(4) TEU or 24 TFEU or the ECI Regulation. This is non to debate that the Commission’s electrical flow interpretation of Article 4(2)(b) is right or not. It is precisely to discovery that a clarification of this betoken yesteryear the GC would receive got been useful.
The ECI is yet a immature instrument, so every clarification of its legal background is helpful for its development. In this regard, the judgment inward Minority SafePack is a welcome add-on to the trunk of police pull comprising the ECI. The reaction of the Commission remains to hold out seen.
Photo credit: Federal Union of European Nationalities
[1] See, for example, A. Karatzia, “The European Citizens’ Initiative inward practice: Legal admissibility concerns”, xl EL Rev. (2015), 509–530 in addition to J. Organ, “Decommissioning Direct Democracy? H5N1 Critical Analysis of Commission Decision-Making on the Legal Admissibility of European Citizens Initiative Proposals” (2014) 10 Eu. Const. 422.