Anastasia Karatzia, Assistant Professor in EU law, Erasmus School
of Law
Introduction
On Friday the 3rd of February,
the General Court (GC) annulled for the first time a Commission Decision
refusing registration of a proposed European Citizens’ Initiative (ECI), on the
ground that the Commission infringed its duty to give reasons for its decision.
Minority SafePack is a short judgment
concerning procedural matters yet at this early stage of the ECI, which was
established in 2012, any judgment clarifying the applicable legal framework is
worthy of attention from those interested in the ECI and more generally in the
opportunities for citizens’ participation in EU lawmaking.
For those unfamiliar with the
topic, the ECI
is an instrument that allows EU citizens to request the Commission to consider
an idea as a possible basis for a legislative proposal. Its legal framework
consists of Articles 11(4) TEU, 24 TFEU, and Regulation
211/2011 (the ECI Regulation) which sets out the detailed procedure for
bringing an ECI. The organisers of an ECI have one year to collect one million
signatures supporting their idea in order for it to be considered by the
Commission, which ultimately has the discretion to respond.
The first step in the entire
process is to submit an ECI proposal to the Commission for registration. An ECI
cannot be registered by the Commission (i.e. organisers cannot start collecting
signatures) if it proposes action that ‘falls manifestly outside the
competences of the Commission to propose legislation’ (Article 4(2)(b) of the ECI
Regulation). If the Commission refuses to register an ECI, it is obliged under
Article 4(3) of the ECI Regulation to inform the organisers of the reasons for
such refusal. The Commission sends a letter of reply to the organisers, which
it then publishes in the ECI website.
Generally speaking, this so-called ‘legal admissibility test’ has been the
subject of academic analysis and discussion since the beginning of the ECI[1],
with stakeholders often arguing that the
test is an obstacle 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 million signatures for
diversity in Europe’, which they characterised
as ‘the most important initiative of the minorities in Europe in recent
decades.’ ‘Minority SafePack’ proposed EU action in numerous policy areas
aiming to improve ‘the protection of persons belonging to national and
linguistic minorities and strengthen cultural and linguistic diversity in the
Union.’ In September 2013, the Commission decided to refuse registration of the
said ECI on the basis of Article 4(2)(b) of the ECI Regulation. It is the
legality of this decision that the ECI organisers challenged before the GC
under 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 by providing the information specified in
Annex II of the ECI Regulation. Annex II requires the following information:
the title, subject matter, and objectives of the proposed ECI; the Treaty
provisions considered relevant by the ECI organisers for the proposed ECI;
personal details of the ECI organisers; and all the sources of funding for the
ECI at the time of registration. The word limit for the description of the
proposed ECI’s subject matter and objectives are, respectively, 200 characters
(approx. 190 words) and 500 characters (approx. 430 words).
Notably for the purpose of our
discussion, Annex II of the ECI Regulation allows organisers to provide an
annex to their registration form with additional information on the subject,
objectives, and background to the proposed ECI; and the organisers are also
allowed to submit a draft act. The organisers of ‘Minority SafePack’ chose to
submit a document
with further detailed information about their proposed ECI. The document set
out eleven proposed legal actions (incl. a Regulation and a Council Directive)
in six areas: language, education, and culture; regional policy; participation;
equality; media; and support for minority communities. It also includes a
so-called ‘saving clause’, asking the Commission to consider each of the eleven
proposals separately on their own merits, and to register only part of the ECI
if it considered that only some of the proposals were deemed to be inadmissible
(see paras 25-26).
In the case before the GC, the
first argument of the applicants concerned an alleged infringement by the
Commission of the essential procedural requirement to give reasons. The applicants
contested the lack of an explanation by the Commission as to which of the
eleven acts suggested by the Initiative failed to comply with Article 4(2)(b)
of the ECI Regulation and as to why this was so. To that effect, they argued
that the Commission infringed Article 296(2) TFEU and Article 4(3) of the ECI
Regulation. Moreover, they complained that the Commission failed to explain its
position that the ECI Regulation does not allow for the registration of at
least a part or parts of a proposed ECI. Indeed this position of the Commission
is neither explicitly stated in the ECI Regulation, nor further explained in
the letter of reply. Moreover, the applicants also argued that none of the
topics for which the Commission was asked to submit a proposal manifestly fell
outside the framework of the Commission’s powers to submit a proposal for a
legal act (paras 8-12).
The main counter-argument of the
Commission was that its decision stated the main reasons for refusing the
registration on the basis of the subject matter of the proposed ECI as
stipulated in the registration form. Any additional information provided by the
organisers (e.g. the additional document with the specific ECI proposals) was
only indicative and informative, and could not be seen as expanding or limiting
the subject matter of the ECI. The Commission stressed that it is not obliged
to explain the reasons behind its position that Article 4(2)(b) of the ECI
Regulation does not allow partial registration of an ECI (paras 13-14).
The General Court’s judgment
With ample references to its
judgment in the first ECI-related case, namely Anagnostakis
v Commission (which concerned the relief of Greek debt), the GC began
by reiterating the twofold purpose behind the obligation of EU Institutions
under Article 296(2) TFEU to give reasons for their decisions (para 15). This
obligation aims (i) to ensure that the person concerned has sufficient
information to determine whether the decision is well-founded; and, (ii) to
enable the exercise of judicial review over the reasoning of the relevant
decision by the EU Courts. In the context of the ECI, this obligation is given
specific expression in Article 4(3) of the ECI Regulation.
Subsequently, the GC explained
that the requirement to give reasons must be assessed vis-à-vis the nature of
the measure, as well as the content of the measure and the nature of the
reasons given by the EU Institution. It acknowledged that the reasoning does
not have to explain all the details behind the relevant decision, but the
extent of the obligation to give reasons needs to be assessed in the light of
the context of each case (para 16). In the case 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), and a
decision refusing registration of an ECI may impinge upon the effectiveness of
this right. Therefore a Commission decision refusing registration ‘must
disclose clearly the grounds justifying the refusal’ in order to enable the
citizen whose ECI was rejected to understand the different reasons for the
refusal and appraise it accordingly (paras 17-18).
It is on this basis that the GC
then went on to assess the reasons given by the Commission for the refusal to
register ‘Minority SafePack’ (see also para 22). The Commission
decision set out three short reasons for the refusal. Firstly, even though
Article 2 TEU refers to the respect for the rights of persons belonging to
minorities as one of the values of the EU referred to in Article 2 TEU, there
is no legal basis for the adoption of legal acts to this end. Secondly, Article
3(3) TEU and Article 21(1) of the Charter also cannot be used as legal basis
for EU action. It should be noted here that the additional document submitted
by the organisers proposed twenty legal bases for the suggested actions. Thirdly,
although some of the acts requested in the Annex to the ECI could fall within
the framework of the Commission’s powers, the ECI Regulation does not provide
for the registration of part or parts of a proposed initiative.
According to the GC, even though
the Commission stated the basis for the refusal (i.e. Article 4(2)(b) of the
ECI Regulation), the Commission’s reasoning was manifestly inadequate. The
Commission failed to identify in any way which of the eleven proposals fell
outside the framework of its powers, and failed to give any reasons supporting
its assessment (para 27). As a result, the organisers were prevented from
identifying the proposals which did not comply with Article 4(2)(b), and from
understanding the reasons behind this conclusion. They were also impeded from
re-submitting a new ECI proposal, as they did not have enough information about
the types of acts that would have been accepted by the Commission. The lack of
sufficient reasons also prevented the GC from assessing the legality of the
Commission’s response. At a more general level, the lack of a complete
statement of reasons discouraged citizens’ participation in democratic life and
was contradicted the objective of the ECI to make the EU more accessible to citizens
(para 29).
In addition, the GC reiterated
its ruling in a previous ECI-related case - Izsák
and Dabis v Commission (currently on appeal) - that the Commission
should have considered the information provided in the organisers’ annex as
being equally important to the mandatory information required by 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 information to the Commission.
Since Annex II has the same binding force as the ECI Regulation, the Commission
- ‘in accordance with the principle of sound administration’ (para 32) - has a
duty to consider any additional information in the same way as it considers the
mandatory information required by Annex II. Therefore, the Commission’s replies
must include the reasons behind the refusal of an ECI in light of all the
information submitted by ECI organisers.
Comment
At first sight, the judgment is
good news for future ECI organisers, as it recognises the effort needed to put
together a legally sound ECI proposal, as well as the limitations in doing so
only through the mandatory information required by Annex II. Had the GC sided
with the Commission’s position, organisers may have found themselves in the
position where they would invest time and effort into writing a proposal stipulating
specific legal bases only for the Commission to then say that it was not
obliged to justify its views on the additional information and the draft legal
acts submitted by the organisers. The Commission itself acknowledges that it
takes into consideration all the possible legal bases in considering whether a
proposal meets the conditions for registration (para 30), so it should not be
an onerous task to expand on its rationale vis-à-vis the specific proposals of
organisers.
Upon closer inspection, it would
appear that the GC’s finding in this and in previous ECI-cases is not
necessarily or always helpful for ECI organisers. This observation becomes
apparent when one looks at the previous case of Iszak and Dabis, which concerned the refusal by the Commission to
register a proposed ECI named ‘Cohesion policy for the equality of the regions
and sustainability of the regional cultures.’ Interestingly, the applicants in
that case made the same argument as the one made by the Commission in Minority
SafePack: additional information should not be given the same weight by the
Commission as that given on mandatory information. The GC disagreed with the
applicants, finding that ‘the “Information set out in Annex II” to which
Article 4 of the [ECI] Regulation refers, is not limited to the minimum
information which must be provided in the register under that Annex.’ In the
view of the GC, this finding does not depend on whether or not the additional
information was or was not in the applicant’s interest.
It seems, therefore, that the Court’s
judgment could play out in two ways for potential ECI organisers. On the one
hand, ECI organisers may be able to rely on it to challenge the Commission’s
reasoning where the latter has not adequately dealt with the additional
information submitted in the registration stage. On the other hand, the Court’s
finding will probably not be particularly helpful for ECI organisers whose ECI
might have been accepted if only the mandatory information had been submitted,
but was rejected because of the additional information.
On a final note, it is rather
unfortunate that the GC did not clarify one other procedural aspect of the ECI.
As mentioned above, the Commission stated in its decision that an ECI with only
some objectives fulfilling the criteria of Article 4(2)(b) cannot be
registered. The GC left open the question whether this interpretation of the
ECI Regulation, which is not specified anywhere in the ECI legal framework, is
legally sound. In para 34, the GC held that it is not necessary to rule on this
question, confining itself to finding that the Commission failed to comply with
its obligation to state reasons. This could be seen as implying that the
Commission may need to justify its interpretation of Article 4(2)(b) of the ECI
Regulation, but this finding does not take away from the question of whether
the Commission’s interpretation of Article 4(2)(b) is correct. Let’s assume,
for example, that the Commission does, indeed, explain the rationale behind its
interpretation of Article 4(2)(b) with regard to partial registration. This
would not automatically mean that the interpretation is legally sound in the
light of the Treaty Articles 11(4) TEU or 24 TFEU or the ECI Regulation. This
is not to argue that the Commission’s current interpretation of Article 4(2)(b)
is correct or not. It is simply to observe that a clarification of this point
by the GC would have been useful.
The ECI is still a young instrument,
so every clarification of its legal background is helpful for its development.
In this regard, the judgment in Minority
SafePack is a welcome addition to the body of law comprising the ECI. The
reaction of the Commission remains to be seen.
Photo credit: Federal Union of European
Nationalities
[1] See, for example, A. Karatzia,
“The European Citizens’ Initiative in practice: Legal admissibility concerns”,
40 EL Rev. (2015), 509–530 and J. Organ, “Decommissioning Direct Democracy? A
Critical Analysis of Commission Decision-Making on the Legal Admissibility of
European Citizens Initiative Proposals” (2014) 10 Eu. Const. 422.
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