The European Citizens’ First & Greek Debt: An Unlikely Combination

Anastasia Karatzia, Lecturer inwards Law, University of Essex

Introduction

It is non every solar daytime that nosotros encounter CJEU judgments on the European together with Monetary Union (EMU). Influenza A virus subtype H5N1 unproblematic search on Curia amongst the words ‘Economic together with Monetary Policy’ results inwards relatively few cases including a span of seminal judgments published inwards the past times 5 years, such every bit Pringle together with Gauweiler (discussed here), which relate to measures taken for the management of the Eurozone crisis. One of the results of this search is the illustration of Anagnostakis v Commission, which challenges the refusal of the Commission to register Mr. Anagnostakis’ proposed European Citizens’ Initiative (ECI) ‘One 1000000 signatures for solidarity’.

Mr. Anagnostakis submitted his proposed Initiative to the Commission inwards July 2012. According to the text of the proposal, the objective of the Initiative was the establishment, inwards European Union law, of a regulation of ‘the solid set down of necessity, inwards accordance amongst which, when the fiscal together with political being of a Member State is threatened past times the servicing of abhorrent debt, the refusal to repay that debt is necessary together with justifiable.’ The proposed ECI mentioned Articles 119 - 144 TFEU (the Treaty provisions on EMU) every bit the legal set down for its adoption. In September 2012, the Commission refused to register Mr. Anagnostakis’ proposal on the the world that the proposal did non fulfil the weather of Article 4(2)(b) of the ECI Regulation, every bit it ‘fell patently exterior the orbit of the Commission’s powers to submit a proposal for the adoption of a legal human activeness of the Union for the role of implementing the Treaty’.

The missive of the alphabet of refusal sent to the organiser stated that the Commission had examined the Treaty provisions referred to inwards the proposed ECI, inwards particular Article 136(1) TFEU ‘and all other possible legal bases’, before final that the proposed Initiative should live refused registration. On eleven Oct 2012, Mr. Anagnostakis challenged the refusal of his Initiative, claiming that the Commission could have got registered the ECI on the set down of Article 122(1), Article 122(2), Article 136(1)(b) TFEU, together with rules of international law. The General Court found that the Commission had non committed an fault inwards police clit past times refusing to register the proposal together with thus dismissed the case. It also ruled that the Commission had complied amongst its obligation to solid set down reasons, after examining this procedural the world on its ain motion.

The applicant appealed the judgment of the General Court, together with the European Court of Justice (ECJ) delivered its judgment on 12 September 2017. This commentary, which is the 3rd inwards a line of piece of occupation of posts inwards ‘EU Law Analysis’ on ECI-cases (see before comments on the TTIP/CETA together with Minority Safepack cases), volition focus on the ECJ’s judgment, which is the commencement together with currently the entirely ECJ judgment relating to an ECI. Interestingly, the judgment was delivered past times the Grand Chamber, perhaps because of the novel nature of the dependent area matter, or (/and) because of the politically sensitive nature of the Initiative.

In add-on to this commencement ECI judgment, the Commission’s Proposal for a novel ECI Regulation, was lately published together with was presented before this calendar week (28 November) past times the First Vice President Timmermans to the European Parliament. The commentary volition conclude past times briefly looking at a specific aspect of the Commission’s Proposal, namely the suggested formalisation of the partial registration of an ECI.

The judgment of the European Court of Justice inwards Anagnostakis

The appeal consisted of 4 grounds which were classified into 2 groups (as suggested past times the Advocate-General’s opinion). The commencement grouping of arguments concerned the physical care for inwards which the Commission made its Decision. The appellant challenged the finding of the General Court that the contested conclusion satisfied the Commission’s requirement to give reasons nether Article 296 TFEU. The minute grouping concerned the meat of the Decision: the appellant complained that the General Court misinterpreted Article 122 TFEU, Article 136(1) TFEU, together with rules of international police clit inwards finding that the Commission’s assessment of Article 4(2)(b) of the ECI Regulation was correct.

The Commission’s obligation to give reasons

According to the appellant, the General Court’s assessment of the Commission’s duty to solid set down reasons was faulty. The General Court wrongly held that the Commission’s mere reference to Article 4(2)(b) of the ECI Regulation inwards its Communication was a sufficient ground for the refusal of the proposed ECI. Simply stating that an ECI proposal was refused on the set down of Article 4(2)(b) of the ECI Regulation did non genuinely explicate why the Commission patently lacked the competence to register the proposal.

The ECJ’s assessment of this the world of review is clear together with consistent amongst the illustration police clit on Article 296 TFEU, specifically expressed inwards the context of the ECI inwards Article 4(3) of the ECI Regulation. The Court started past times referring to Article 11(4) TEU (i.e. the legal set down of the ECI together amongst Article 24 TFEU), characterising the ECI every bit i of the instruments related to ‘the right of citizens to participate inwards the democratic life of the Union,’ (para 24) stipulated inwards Article 10(3) TFEU. The Court referred to well-established illustration police clit on Article 296 TFEU, according to which an European Union institution’s statement of reasons must live assessed past times reference to the circumstances of the specific case, taking into consideration the wording of the statement every bit good every bit the context together with all the legal rules governing the affair inwards inquiry (para 29). It stressed that the role of the duty to give reasons is to enable the mortal concerned to empathize why the conclusion was taken, together with to enable the competent Court to practise its powers of review.

The Court together with so went on to consider the General Court’s finding that the Commission had complied amongst its obligation to solid set down reasons (paras 31-43).The master copy message of the Court hither was that a to a greater extent than detailed statement of reasons past times the Commission would entirely live required if the ECI proposal itself was to a greater extent than detailed. The brevity of the proposed ECI, every bit good every bit the full general reference made to Articles 119-144 TFEU together with the lack of an explanation of the link betwixt those Articles together with the content of the proposal, justified the brevity of the contested Decision.

In low-cal of the format of the proposed Initiative, the Commission was entitled to assess the proposal predominantly on the set down of Article 136(1) TFEU (a full general powerfulness to adopt legislation relating to EMU), which was the to the lowest degree irrelevant Article on which the proposed ECI could have got relied. Moreover, at that spot is no obligation on the Commission to justify its assessment of all 26 proposed legal bases or to explicate why whatever other provision of the TFEU was irrelevant. In its assessment, the Court took into concern human relationship the fact that the General Court was eventually able to review the meat of the Commission’s decision, which, every bit mentioned above, is i of the underlying objectives of imposing on the European Union Institutions a duty to give reasons inwards the commencement house (para 40).

In line of piece of occupation amongst the General Court ruling inwards Minority Safepack, the ECJ inwards Anagnostakis supported the take in that that the Commission would have got to unwrap a to a greater extent than detailed statement of reasons entirely if the organisers had given to a greater extent than detailed information on the connectedness betwixt the recommended legal bases together with the content of the proposed ECI (para 37). Future ECI organisers should so live mindful of the fact that the format of a proposed ECI itself – including the details inwards the text of the proposal together with the Annexes attached to it – is a determining constituent of the extent of the Commission’s obligation to give reasons for rejecting a proposed Initiative. This approach mightiness refuel concerns regarding the powerfulness of grassroots organisers to position together detailed explanations of the suitable legal bases for their proposals, non to the lowest degree when these proposals have got to create amongst matters that are every bit complicated every bit the EMU.

On the meat of the case

With regard to the meat of the case, the appellant argued that the Commission should have got registered the proposed Initiative on the set down of Articles 122, 136(1) TFEU, together with rules of international law. The latter argument, which was examined last, was the i nearly swiftly rejected past times the Court: a regulation of international police clit cannot live a legal set down for an first past times the Commission. According to Article 5(1) together with 5(2) TEU, the Commission tin shipping away entirely human activeness inside the limits of the competences conferred upon it past times the Treaties, together with the being of a regulation of international police clit ‘would non suffice every bit a set down for a legislative initiative’ (see paras 95-103).

Interestingly, before delving into the meat of the matter, the Court considered the orbit of judicial review that it could deportment out inwards the illustration at hand. It clarified that a review of the merits of the General Court’s conclusion tin shipping away entirely live made on the set down of the information provided at the fourth dimension of the asking for the Initiative’s registration. As such, the Court would non have got into concern human relationship whatever clarifications made past times the appellant inwards the appeal at hand. After this preliminary observation, the ECJ examined the appellant’s arguments concerning Articles 122 together with 136(1) TFEU.

The Court commencement examined whether Article 122 TFEU could have got been an appropriate legal set down for the proposed ECI. It reiterated that Article 122(1) TFEU allows the Council to decide, ‘in a spirit of solidarity betwixt Member States’, upon measures appropriate to the economical situation, peculiarly if the Member State is facing severe difficulties inwards the provide of for sure products inwards the expanse of energy. It confirmed the finding of the General Court inwards commencement instance, which had cited Pringle, that Article 122(1) TFEU ‘does non constitute an appropriate legal set down for possible fiscal assistance from the Union to Member U.S. of A. who are experiencing, or are threatened past times severe financing issues’ (para 69). According to the Court, it did non affair that Pringle concerned the European Stability Mechanism, which was non the focus of the proposed ECI; the yell for remained that Article 122(1) TFEU does non apply to measures aiming to ease a Member State of its fiscal difficulties (para 70).

Subsequently, the ECJ also dismissed the appellant’s statement that, opposite to the General Court’s decision, Article 122(2) TFEU could live an appropriate legal set down for the ECI. The provision allows the Council to authorise fiscal assistance from the European Union to a Member State which is experiencing severe difficulties or a serious threat of severe difficulties caused past times natural disasters or exceptional circumstances beyond its control. Once again, the ECJ referred to the illustration of Pringle where it had ruled that Article 122(2) TFEU cannot live used every bit the set down for the establishment of a full general together with permanent machinery of non-repayment of debt (para 75). Since the ECI proposal suggested the deletion of debts owed past times the Member U.S. of A. to both the European Union together with to world together with private, natural or legal persons, it could non autumn inside the important of Article 122(2) TFEU, which concerns entirely fiscal assistance provided past times the European Union together with non past times the other involved persons (paras 76 together with 77).

Finally, the ECJ confirmed the finding of the General Court that Article 136(1) TFEU cannot live used every bit a legal set down for the establishment of the regulation of the solid set down of necessity inwards European Union law. According to the Court, the adoption of a mensurate such every bit the i suggested past times the proposed Initiative cannot live seen every bit ‘economic policy guidance’ every bit envisaged past times Article 136(1)(b) TFEU. To the contrary, the machinery proposed past times the ECI would supervene upon the complimentary volition of contracting parties past times allowing for the unilateral writing-off of sovereign debt (paras 90-91).

Overall, it is notable that the ECJ dismissed a number of the applicant’s arguments nether each the world of appeal because of the limited orbit of review inwards the context of the illustration at hand. On appeal, the ECJ tin shipping away entirely review the findings of police clit on the illustration position frontwards past times the parties inwards the illustration before the General Court. As such, a number of the arguments position frontwards past times the appellant were non assessed on their merits, leaving a number of questions unanswered past times the Court inwards this occasion. The commencement inquiry is whether a Member State facing severe financing difficulties tin shipping away invoke the so-called ‘state of necessity’ to have debt relief non unilaterally, but dependent area to conditionality set downwards past times the Commission (paras 71-73). The minute inquiry is whether the Initiative could live adopted on the set down of Article 136(3) TFEU inwards conjunction amongst Article 352 TFEU (the ‘residual powers’ clause). Besides the procedural yell for concerning the inability of the ECJ to dominion on the inwards a higher house 2 questions on appeal, i mightiness also wonder whether the ECI-case of Anagnostakis would have got been an appropriate occasion for the ECJ to brand whatever bold declarations on the number of a Member State’s debt relief.

The 3rd inquiry left opened upwards was whether the Commission should have got partially registered the proposed Initiative entirely to the extent that the proposal suggested the relief of the debt owed past times a Member State to the Union. The ECJ did non examine whether the Commission should have got registered this interpretation of the proposal. As a to a greater extent than full general observation, nosotros should banker's complaint that the procedural inquiry of whether partial registration past times the Commission is possible has straight off locomote redundant. Earlier this year, the Commission partially registered the Minority SafePack ECI while, every bit nosotros volition encounter below, the Commission’s Proposal for a New ECI Regulation specifically refers to the possibility for the Commission to allow partial registration of a proposed Initiative.

Partial Registration of an ECI nether the Commission’s Proposal for a New ECI Regulation

Five days after the ECJ’s conclusion inwards Anagnostakis, the Commission published its ‘Proposal for a Regulation of the European Parliament together with of the Council on the European Citizens’ Initiative’, which suggests the adoption of a New ECI Regulation to supervene upon Regulation 211/2011. In the proposed ‘New ECI Regulation’, the legal admissibility seek out has been moved from Article 4 to Article 6. The newly suggested provision retains the essence of the electrical flow procedure: organisers may entirely start collecting signatures supporting their ECI after they have got submitted their asking through the register (Article 6(2)), together with the Commission has checked that the proposal satisfies for sure legal together with procedural criteria (Article 6(3) together with (4)) together with has registered the proposal (Article 6(1)).

Under the New ECI Regulation, Articles 6(3)(d) together with (e) keep the 2 legal criteria of the electrical flow ECI Regulation: a proposed Initiative volition non live registered if it is patently abusive, frivolous or vexatious, or if it is patently opposite to the values of the European Union (see Article 4(2)(c) together with (d) of the electrical flow ECI Regulation). Perhaps the nearly notable changes are included inwards Articles 6(3)(c) together with Article 6(4) of the New ECI Regulation compared amongst the electrical flow Article 4(2)(b) of the ECI Regulation. Article 6(3)(c) states that the Commission shall register a proposed first if ‘none of the parts of the first patently falls exterior the framework of the Commission’s powers to submit a proposal for a legal human activeness of the Union for the role of implementing the Treaties’. This Article should live read inwards conjunction amongst Article 6(4), which allows for the partial registration of an ECI past times the Commission.

To position it only (or, at least, every bit only every bit possible), if the Commission considers that entirely parts of a proposal autumn inside its competence to suggest a legal act, it has to shipping the proposal dorsum to the organisers inside i month, together amongst the reasons behind its assessment. The organisers together with so have got the possibility – together with the responsibleness – to modify together with resubmit, to maintain, or to withdraw their initial proposal. It is non really clear why organisers mightiness desire to keep a rejected proposal, which inwards all likelihood volition only live rejected over again past times the Commission. In illustration the organisers create upwards one's heed to modify their proposal, however, they would have got the responsibleness of submitting the necessary amendments to the Commission. After receiving the amendments, the Commission would have got i calendar month to assess the novel information together with to either register, partially register, or reject the ECI (Article 6(4)).

Partial registration of an ECI would thus live formalised inwards the feel that the Commission would have got to cheque if ‘a substantial business office of the first including its master copy objectives’ does non patently autumn exterior the framework of the Commission’s powers to submit a proposal for a legal act. The proposed Regulation does non define what is to live considered ‘a substantial part’ of a proposed Initiative. Not entirely that, but the proposal shifts the burden on the organisers to re-consider their first together with re-submit to the Commission, instead of obliging the Commission to specify which parts of the initial ECI proposal it tin shipping away keep for the purposes of registration. It volition live interesting to encounter how the European Parliament volition react to this, together with the ease of the changes to the ECI legal framework proposed past times the Commission inwards the New ECI Regulation, peculiarly since MEPs have got been advocating for a to a greater extent than user-friendly ECI inwards their contributions to the review of the electrical flow ECI Regulation.   

Photo credit: CNBC

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