New Developments Inwards The Context Of The European Citizens’ Initiative: Full General Courtroom Rules On ‘Stop Ttip’

Anastasia Karatzia, Assistant Professor inward European Union Law, Erasmus University Rotterdam in addition to currently Visiting Research Fellow at the School of Law in addition to Social Justice, University of Liverpool

Introduction

A few months ago, we saw the first off annulment past times the EU’s General Court of a Commission Decision refusing registration of a proposed European Citizens’ Initiative (ECI), inward the illustration of Minority SafePack. Last week, in that place was an fifty-fifty bigger evolution inward the illustration constabulary of the General Court regarding the interpretation of the ECI’s legal admissibility test: inward the Stop TTIP case[1] the Court annulled some other Commission’s Decision, this fourth dimension non on a procedural solid set down such every bit the i inward Minority SafePack, but on the noun solid set down that the Commission breached Article 11(4) TEU (which sets out the ability to adopt the ECI law), in addition to Articles 2(1) in addition to 4(2)(b) of the ECI Regulation, which sets out i of the criteria for the legal admissibility test.

In Stop TTIP, the General Court clarified a affair of contestation betwixt ECI organisers / stakeholders in addition to the Commission viz. the compass of an ECI and, to a greater extent than specifically, the way inward which the Commission had limited the acceptable subject-matters for the purposes of registering an ECI. These limitations were stipulated inward the Commission’s missive of the alphabet of response regarding the refusal of registration for the proposed ‘Stop TTIP’ Initiative, which was submitted for registration inward July 2014. The Initiative proposed to cease the negotiations for the Transatlantic Trade in addition to Investment Partnership agreement (TTIP) betwixt the European Union in addition to US, in addition to to forbid the conclusion of the Comprehensive Economic in addition to Trade Agreement (CETA) betwixt the European Union in addition to Canada.

In to a greater extent than detail, ‘Stop TTIP’ had invited the Commission to inquire the Council to repeal its determination to authorise the opening of the TTIP negotiations nether Article 218(2) TFEU (which is the legal dominion on the physical care for of the European Union negotiating treaties). It also asked the Commission to submit a proposal for a Council determination non to conclude CETA. In September 2014, the Commission replied to the organisers that both their proposals had been rejected on the set down of Article 4(2)(b) inward conjunction amongst Article 2(1) of the ECI Regulation, because they cruel exterior the framework of the Commission’s powers to submit a proposal for a legal deed of the Union for the purpose of implementing the Treaties.

The Commission’s reply revealed 2 limitations on the compass of the ECI.[2] First, the Commission stipulated that an ECI cannot invite the Commission to adopt preparatory acts. The Commission argued inward its answer that its proposals to the Council nether Article 218 TFEU to authorise the opening of negotiations for international agreements were non proposals for legal acts. The Council Decisions authorising the opening of negotiations for an international understanding are preparatory acts that make legal effects only betwixt the European Union in addition to its Member States in addition to betwixt the European Union institutions. Therefore, the Commission’s relevant proposals to the Council lacked legal number against 3rd parties. Accordingly, the seat of the Commission was that ‘Stop TTIP’ was non proposing whatever legal acts for the purpose of implementing the Treaties in addition to could non live registered. Second, the Commission declared that an ECI cannot invite the Commission to suggest a determination not to adopt a legal deed such every bit a proposal non to conclude CETA, or to refrain from proposing a legal act. Such a proposal ‘would non deploy whatever autonomous legal number beyond the fact of the legal deed at number non beingness adopted.’ The negative nature of the ‘Stop TTIP’ proposals, together amongst the fact that it arguably did non suggest ‘legal acts’ every bit required past times Article 11(4) in addition to Article 2(1) ECI Regulation, led to the refusal past times the Commission to register it. Notably, the limitations imposed past times the Commission are non clearly indicated inward the ECI Regulation. Instead, they resulted from the Commission’s ain interpretation of the ECI’s legal framework.

After the Commission’s rejection, the ‘Stop TTIP’ organisers followed a twofold course of study of action: they brought a illustration before the European Union General Court, which is the first off illustration part of the Court of Justice of the European Union (CJEU), contesting the Commission’s determination to decline registration of their Initiative, in addition to they started what they named ‘a self-organised ECI’, which was a stimulate to collect signatures exterior the contours of the ECI’s legal framework. The stimulate went on to collect to a greater extent than than 3 i K 1000 signatures, which the organisers handed over to the Commission inward Oct 2015.

It becomes apparent from the to a higher house overview that the significance of the General Court’s judgment inward the Stop TTIP case does non derive only from the inquiry of whether the specific Initiative was wrongly refused registration, but also from the inquiry of whether the ECI’s compass to suggest European Union activeness was rightly limited past times the Commission beyond what is explicitly written inward the ECI Regulation. In this sense, the General Court’s judgment is a milestone both for the ECI organisers themselves in addition to for the performance of the ECI every bit a machinery for citizens’ participation. This curt commentary volition touching upon the key aspects of the judgment.

The arguments of the parties

The applicants inward the illustration made 2 principal arguments. They claimed that the Commission (i) breached Article 11(4) TEU in addition to Article 4(2)(b) of the ECI Regulation, in addition to (ii) breached the regulation of equal handling (Article twenty of the European Union Charter of Fundamental Rights) because it had registered inward the past times the ‘Swissout’ Initiative which had real similar objectives amongst ‘Stop TTIP’. The judgment focused on the first off solid set down of review in addition to did non bargain at all amongst the second.

In back upwards of their claim, the applicants brought frontward 3 principal arguments. Firstly, they argued that the Council’s Decisions authorising the conclusion of an international understanding nether Article Article 218(5) TFEU is non a preparatory act. With regard to the Initiative proposals concerning the CETA negotiations, which were already taking house at the fourth dimension of the asking for registration, a Decision past times the Council to the Commission non to conclude CETA would non live a preparatory deed but an deed amongst legally binding effects. Regarding the Initiative proposals concerning a proposal past times the Commission to the Council to repeal the Decision authorising the negotiations for TTIP, such a Decision would final result to the termination of the negotiations, in addition to would receive got been lastly in addition to legally binding. In whatever case, the compass of an ECI should non live limited to proposing legal acts amongst definitive, legally binding effects vis-à-vis 3rd parties. Neither the background to the ECI Regulation, nor the ECI’s overall regulatory framework telephone phone for such a restrictive reading of the term ‘legal acts’ (para 12).

Secondly, the applicants argued against the Commission’s seat that an ECI cannot work organization acts that deploy legal effects only betwixt the institutions concerned. For the purposes of the ECI, the term ‘legal act’ should live defined broadly inward lite of Articles 288 – 292 TFEU, in addition to should include Commission’s Decisions that are exterior the ordinary legislative physical care for (para 13).

Thirdly, the applicants referred to the potentially ‘destructive effect’ of the proposed Initiative on the negotiations for TTIP in addition to CETA. This alleged ‘destructive effect’ cannot live seat frontward every bit a solid set down for refusal nether the rationale that the Initiative’s proposals did non receive got the purpose of implementing the Treaties. In the persuasion of the applicants, ‘the right of citizens to participate inward the democratic life of the Union includes the possibility of citizens acting amongst the purpose of modifying, reforming, ratifying, or asking for a partial or total annulment of European Union law’ (para 14).

The Commission’s principal counter-arguments supported the seat expressed inward its 2014 missive of the alphabet of response to the organisers. The Commission reiterated its seat that the Council Decision to approve the opening of negotiations for an international understanding is only preparatory because it only produces legal effects betwixt the 2 European Union institutions. Based on a ‘systematic in addition to teleological interpretation’ of Articles 2(1) in addition to 4(2)(b) of the ECI Regulation, it tin live concluded that an deed of preparatory graphic symbol falls exterior the Definition of a ‘legal act’ for the purposes of registering an ECI (para 19). This declaration was farther supported past times the assertion that the notion of democratic participation inward the European Union refers to the participation of citizens only inward matters which (potentially) autumn nether their legal sphere. Instead, the Council in addition to the Commission taste sufficient democratic legitimacy to live the ones to adopt acts that impact the human relationship betwixt the European Union institutions (para 20).

In addition, the Commission repeated its declaration that an ECI cannot inquire it non to suggest a particular legal deed or to suggest a determination for the non-adoption of a legal act. Interestingly, it referred to Article 10(1)(c) of the ECI Regulation which deals amongst the lastly phase of the ECI process, whereby the Commission is obliged to number a Communication setting out ‘the activeness it intends to take, if any’. From this, the Commission concluded that only ECIs that aim to the adoption of a legal deed or to the repeal of an existing legal deed tin live registered. Otherwise, a proclamation past times the Commission that, every bit a response to an ECI, it does non aim to suggest the adoption of a legal deed would receive got excessively limited the Commission’s monopoly of legislative initiative. According to this argument, an ECI asking for the Council to repeal a Decision opening the negotiations or asking it non to conclude an agreement, would receive got been an ‘unacceptable interference’ inward an on-going legislative physical care for (para 21).

The judgment of the General Court

The General Court began amongst a reference to the ECI’s legal framework. It mentioned Article 11(4) TEU, in addition to the ECI Regulation, specifically Article 2(1) (definition of the ECI), Article 4(2)(b) (the legal admissibility test), in addition to Article 10(1)(c) (the obligation of the Commission to respond to a successfully submitted ECI) (paras 23-27). It so explained that the ECI organisers had non asked the Commission not to submit a proposal to the Council for the signing in addition to conclusion of TTIP in addition to CETA. Instead, the organisers asked the Commission to submit to the Council 2 proposals: (a) a proposal to think the say-so for the opening of negotiations for TTIP; in addition to (b) a proposal non to authorise the signing of TTIP in addition to CETA in addition to thus non to conclude these agreements (para 28). As such, the Court also clarified that the electrical flow illustration did non rival the competence of the Commission to negotiate TTIP in addition to CETA. Instead, it was a challenge to the reasons given past times the Commission for the refusal of the proposal (para 29).

Subsequently, the Court specified that the Commission has the competence to deed inward the way asked past times the applicants, i.e. to submit to the Council the 2 proposals (paras 30-32), in addition to went on to bargain amongst the inquiry of whether these actions tin live excluded from an ECI either because they are preparatory acts, or because they are non necessary for the implementation of the Treaty, every bit the Commission had argued (para 33).

On the Definition of a ‘legal act’ for the purposes of an ECI, the Court sided amongst the applicants: the notion of ‘legal act’ inward Article 11(4) TEU, in addition to Articles 2(1) in addition to 4(2)(b) of the ECI Regulation cannot live interpreted to include only lastly European Union acts amongst legally binding effects vis-à-vis 3rd parties. The Commission’s seat is non justified past times the missive of the alphabet of the constabulary or past times the overall purpose of these provisions. This was all the to a greater extent than so since the actions inward question, which concerned the conclusion of an international agreement, agree squarely into the Definition of a ‘Decision’ inward accordance amongst Article 288(4) TFEU, every bit clarified inward Case 114/12 Commission v Council. Besides, a broad interpretation of ‘legal act’ is mandated past times the democratic regulation on which the European Union is founded (Article 2 TEU) (paras 35-37).

In addition, the Court rejected the Commission’s declaration that the Initiative could non receive got been registered because the suggested actions did non aim to the implementation of the Treaties in addition to thus were destructive to the law-making process. According to the Court, in that place is zip inward Article 11(4) TEU or Article 2(1) ECI Regulation indicating that citizens cannot deed through an ECI inward fellowship to forbid the adoption of a legal act. Furthermore, the conclusion of TTIP in addition to CETA would receive got modified the European Union legal order. As such, past times advocating to halt the 2 agreements, the ‘Stop TTIP’ organisers were genuinely acting for the implementation of the electrical flow Treaties (para 41). In whatever case, Initiatives that suggest the non-signature in addition to non-conclusion of an international understanding make legal effects since they may prohibit the change of European Union constabulary intended past times the said understanding (para 43).

Lastly, fifty-fifty though the Court did non explicitly address the applicants’ 2nd claim on the unequal handling of their Initiative inward comparing amongst the Swissout Initiative, it did address the paradoxical province of affairs that resulted from the handling of the 2 Initiatives. This paradox resulted from the fact that, according to the Commission’s interpretation, an ECI could suggest the termination of an existing international understanding but non the termination of the negotiations towards such agreement. The Court took a citizen-friendly approach inward maxim that citizens should non live obliged to hold off until an understanding is concluded before they tin rival the conclusion of the understanding through an ECI (para 44). In this sense, the Court has seat proposals asking for the termination of negotiations on a par amongst those asking for the opening of negotiations, in addition to has interpreted the compass of the ECI every bit beingness capable of encompassing both type of proposals.

Commentary

I had commented on an before publication that the ‘Stop TTIP’ illustration was a adept chance for the CJEU to measuring inward in addition to dot out the right interpretation of Article 4(2)(b) of the ECI Regulation regarding proposals concerning the conclusion of international agreements. It would appear that the General Court has seized that opportunity. The judgment widens the compass of the ECI past times completely overruling the Commission’s interpretation of legal admissibility inward the particular context. In this sense, the judgment is a positive in addition to constructive evolution non only for the ECI organisers, who had been waiting for it for almost 3 years, but also for those interested inward starting an ECI stimulate on a topic related to an international agreement, every bit good every bit for ECI stakeholders who receive got been calling for a to a greater extent than flexible legal admissibility test.

What makes the illustration especially interesting is the extensive reliance of the Court on the nature of the ECI every bit a democratic participation machinery that intends to foster democratic dialogue in addition to give citizens the chance to address the Commission inward fellowship to asking action. For instance, the Court implicitly rejected the Commission’s first off declaration that a potential breach of Article 11(4) TEU was irrelevant in addition to that the only relevant legal text should live the ECI Regulation which is based on Article 24 TFEU in addition to stipulates the details of the legal admissibility test. Both the Court’s interpretation of ‘legal acts’ for the purposes of registering an ECI (paras 35-36) in addition to that of ‘implementing the Treaties’ (para 41) relies on a articulation reading of Article 11(4) TEU in addition to the relevant provisions of the ECI Regulation. The Court fifty-fifty considered the ECI inward lite of the key regulation of commonwealth every bit included inward the Preamble of the Treaty in addition to the European Union Charter of Fundamental Rights inward fellowship to broaden the compass of the right to convey an ECI beyond the Commission’s delineation (para 37).

In addition, the Court has held a to a greater extent than restrictive persuasion than the Commission on what is an ‘unacceptable interference amongst the adoption of a legal act’ when it comes to an ECI. According to the Court, the real notion of citizens’ participation inward the democratic life of the European Union - of which the ECI is part - includes the possibility to inquire for the modification, every bit good every bit the partial or total repeal of legal acts. H5N1 truthful shape of citizens’ participation inward the democratic life of the European Union should give the chance to citizens to obstruct, or interfere with, the adoption of a legal act. Since it is solely upwards to the Commission to determine the follow-up of a successfully submitted ECI later the populace hearing of that ECI (Article 10 ECI Regulation), it could non live said that the registration of ‘Stop TTIP’ would receive got been an unacceptable interference amongst the legislative physical care for or that it would receive got breached the regulation of institutional residual (paras 45-46). It would seem, therefore, that the Court has taken into consideration the overall discretion of the Commission at the halt of the ECI physical care for when interpreting the legal admissibility test, which takes house at the beginning.

Given that this is only the 2nd fourth dimension that the General Court annuls a Commission’s determination to reject a proposed ECI, the answer to the inquiry ‘what happens now?’ is non solely clear. After the Minority SafePack case, the Commission registered the part of the ECI that it considered admissible. As a response to the judgment, the Commission also issued a Decision elaborating on its reasons for only registering part of the ECI. The province of affairs this fourth dimension around is to a greater extent than complicated. As mentioned above, the ‘Stop TTIP’ organisers went ahead amongst collecting signatures despite the refusal of their ECI. Impressively, inside i twelvemonth (October 2014 – Oct 2015) the stimulate collected around 3.3 i K 1000 signatures, to a greater extent than than whatever of the formally registered ECIs. Subsequently, the organisers stated inward their website: ‘we need that the European Commission care for us similar a regular ECI which agency nosotros hold off an official response from the European Commission in addition to a populace hearing inward the European Parliament.’ The Commission is instantly faced amongst interesting dilemmas: Will it register the ECI or pursue the illustration farther past times appealing before the European Court of Justice? If it does register the ECI, volition it pick out the collected signatures or volition it oblige the organisers to start over? In its plans to propose revisions to the ECI inward the close future, volition the Commission essay to overturn the novel judgment – or pick out in addition to fully contain it?

The constituent of fourth dimension also makes the upcoming Commission’s response to this illustration peculiarly noteworthy. Between 2014 in addition to 2017 nosotros receive got seen major developments amongst regard to TTIP in addition to CETA, including xv negotiating rounds on TTIP upwards to Oct 2016 in addition to a proposal inward July 2016 past times the Commission to the Council for the signature in addition to conclusion of CETA. More recently, the European Parliament voted inward favour of CETA later Wallonia nearly blocked the agreement. All of these developments are inward fact the exact contrary of what the ‘Stop TTIP’ organisers were requesting inward their proposal, which indicates the importance of momentum to an ECI’s overall success.

On a lastly note, I wonder what the implications of the General Court’s judgment are amongst regard to futurity ECIs relating to Brexit. It would appear that the judgment has opened the door to ECI proposals objecting to a possible futurity understanding on the UK-EU relationship, assuming that such an understanding volition live eventually negotiated on the set down of Article 207 in addition to 218 TFEU. Of course of study nosotros receive got a long way to expire before this number fifty-fifty becomes relevant – if it e'er becomes relevant at all. However, such a scenario would sure opened upwards a novel dimension to citizens’ participation in addition to vox inward the Brexit process. Meanwhile, let’s come across how the Commission volition respond to Stop TTIP and how the organisers volition expire on their campaign.

Photo credit: Stop TTIP

Barnard & Peers: chapter 24

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[1] The judgment is non available inward English linguistic communication yet. This commentary is based on my ain translation from the Greek version in addition to whatever translation errors are mine.

[2] I had elaborated on the Commission’s Decision inward an older publication: A.Karatzia “The European Citizens’ Initiative inward practice: Legal admissibility concerns” (2015) forty EL Rev. 509, pp. 516-518

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