The European Citizens’ Initiative & Greek debt: An unlikely combination

Anastasia Karatzia, Lecturer in Law, University of Essex

Introduction

It is not every day that we see CJEU judgments on the European and Monetary Union (EMU). A simple search on Curia with the words ‘Economic and Monetary Policy’ results in relatively few cases including a couple of seminal judgments published in the past five years, such as Pringle and Gauweiler (discussed here), which relate to measures taken for the management of the Eurozone crisis. One of the results of this search is the case of Anagnostakis v Commission, which challenges the refusal of the Commission to register Mr. Anagnostakis’ proposed European Citizens’ Initiative (ECI) ‘One million signatures for solidarity’.

Mr. Anagnostakis submitted his proposed Initiative to the Commission in July 2012. According to the text of the proposal, the objective of the Initiative was the establishment, in EU law, of a principle of ‘the state of necessity, in accordance with which, when the financial and political existence of a Member State is threatened by the servicing of abhorrent debt, the refusal to repay that debt is necessary and justifiable.’ The proposed ECI mentioned Articles 119 - 144 TFEU (the Treaty provisions on EMU) as the legal basis for its adoption. In September 2012, the Commission refused to register Mr. Anagnostakis’ proposal on the ground that the proposal did not fulfil the conditions of Article 4(2)(b) of the ECI Regulation, as it ‘fell manifestly outside the scope of the Commission’s powers to submit a proposal for the adoption of a legal act of the Union for the purpose of implementing the Treaty’.

The letter of refusal sent to the organiser stated that the Commission had examined the Treaty provisions referred to in the proposed ECI, in particular Article 136(1) TFEU ‘and all other possible legal bases’, before concluding that the proposed Initiative should be refused registration. On 11 October 2012, Mr. Anagnostakis challenged the refusal of his Initiative, claiming that the Commission could have registered the ECI on the basis of Article 122(1), Article 122(2), Article 136(1)(b) TFEU, and rules of international law. The General Court found that the Commission had not committed an error in law by refusing to register the proposal and thus dismissed the case. It also ruled that the Commission had complied with its obligation to state reasons, after examining this procedural ground on its own motion.

The applicant appealed the judgment of the General Court, and the European Court of Justice (ECJ) delivered its judgment on 12 September 2017. This commentary, which is the third in a line of posts in ‘EU Law Analysis’ on ECI-cases (see earlier comments on the TTIP/CETA and Minority Safepack cases), will focus on the ECJ’s judgment, which is the first and currently the only ECJ judgment relating to an ECI. Interestingly, the judgment was delivered by the Grand Chamber, possibly because of the novel nature of the subject matter, or (/and) because of the politically sensitive nature of the Initiative.

In addition to this first ECI judgment, the Commission’s Proposal for a new ECI Regulation, was recently published and was presented earlier this week (28 November) by the First Vice President Timmermans to the European Parliament. The commentary will conclude by 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 in Anagnostakis

The appeal consisted of four grounds which were classified into two groups (as suggested by the Advocate-General’s opinion). The first group of arguments concerned the procedure in which the Commission made its Decision. The appellant challenged the finding of the General Court that the contested decision satisfied the Commission’s requirement to give reasons under Article 296 TFEU. The second group concerned the substance of the Decision: the appellant complained that the General Court misinterpreted Article 122 TFEU, Article 136(1) TFEU, and rules of international law in 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 state reasons was faulty. The General Court wrongly held that the Commission’s mere reference to Article 4(2)(b) of the ECI Regulation in its Communication was a sufficient reason for the refusal of the proposed ECI. Simply stating that an ECI proposal was refused on the basis of Article 4(2)(b) of the ECI Regulation did not actually explain why the Commission manifestly lacked the competence to register the proposal.

The ECJ’s assessment of this ground of review is clear and consistent with the case law on Article 296 TFEU, specifically expressed in the context of the ECI in Article 4(3) of the ECI Regulation. The Court started by referring to Article 11(4) TEU (i.e. the legal basis of the ECI together with Article 24 TFEU), characterising the ECI as one of the instruments related to ‘the right of citizens to participate in the democratic life of the Union,’ (para 24) stipulated in Article 10(3) TFEU. The Court referred to well-established case law on Article 296 TFEU, according to which an EU institution’s statement of reasons must be assessed by reference to the circumstances of the specific case, taking into consideration the wording of the statement as well as the context and all the legal rules governing the matter in question (para 29). It stressed that the purpose of the duty to give reasons is to enable the person concerned to understand why the decision was taken, and to enable the competent Court to exercise its powers of review.

The Court then went on to consider the General Court’s finding that the Commission had complied with its obligation to state reasons (paras 31-43).The main message of the Court here was that a more detailed statement of reasons by the Commission would only be required if the ECI proposal itself was more detailed. The brevity of the proposed ECI, as well as the general reference made to Articles 119-144 TFEU and the lack of an explanation of the link between those Articles and the content of the proposal, justified the brevity of the contested Decision.

In light of the format of the proposed Initiative, the Commission was entitled to assess the proposal predominantly on the basis of Article 136(1) TFEU (a general power to adopt legislation relating to EMU), which was the least irrelevant Article on which the proposed ECI could have relied. Moreover, there is no obligation on the Commission to justify its assessment of all 26 proposed legal bases or to explain why any other provision of the TFEU was irrelevant. In its assessment, the Court took into account the fact that the General Court was eventually able to review the substance of the Commission’s decision, which, as mentioned above, is one of the underlying objectives of imposing on the EU Institutions a duty to give reasons in the first place (para 40).

In line with the General Court ruling in Minority Safepack, the ECJ in Anagnostakis supported the view that that the Commission would have to publish a more detailed statement of reasons only if the organisers had given more detailed information on the connection between the recommended legal bases and the content of the proposed ECI (para 37). Future ECI organisers should therefore be mindful of the fact that the format of a proposed ECI itself – including the details in the text of the proposal and the Annexes attached to it – is a determining factor of the extent of the Commission’s obligation to give reasons for rejecting a proposed Initiative. This approach might refuel concerns regarding the ability of grassroots organisers to put together detailed explanations of the suitable legal bases for their proposals, not least when these proposals have to do with matters that are as complicated as the EMU.

On the substance of the case

With regard to the substance of the case, the appellant argued that the Commission should have registered the proposed Initiative on the basis of Articles 122, 136(1) TFEU, and rules of international law. The latter argument, which was examined last, was the one most swiftly rejected by the Court: a principle of international law cannot be a legal basis for an initiative by the Commission. According to Article 5(1) and 5(2) TEU, the Commission can only act within the limits of the competences conferred upon it by the Treaties, and the existence of a principle of international law ‘would not suffice as a basis for a legislative initiative’ (see paras 95-103).

Interestingly, before delving into the substance of the matter, the Court considered the scope of judicial review that it could carry out in the case at hand. It clarified that a review of the merits of the General Court’s decision can only be made on the basis of the information provided at the time of the request for the Initiative’s registration. As such, the Court would not take into account any clarifications made by the appellant in the appeal at hand. After this preliminary observation, the ECJ examined the appellant’s arguments concerning Articles 122 and 136(1) TFEU.

The Court first examined whether Article 122 TFEU could have been an appropriate legal basis for the proposed ECI. It reiterated that Article 122(1) TFEU allows the Council to decide, ‘in a spirit of solidarity between Member States’, upon measures appropriate to the economic situation, especially if the Member State is facing severe difficulties in the supply of certain products in the area of energy. It confirmed the finding of the General Court in first instance, which had cited Pringle, that Article 122(1) TFEU ‘does not constitute an appropriate legal basis for possible financial assistance from the Union to Member States who are experiencing, or are threatened by severe financing issues’ (para 69). According to the Court, it did not matter that Pringle concerned the European Stability Mechanism, which was not the focus of the proposed ECI; the point remained that Article 122(1) TFEU does not apply to measures aiming to ease a Member State of its financial difficulties (para 70).

Subsequently, the ECJ also dismissed the appellant’s argument that, contrary to the General Court’s decision, Article 122(2) TFEU could be an appropriate legal basis for the ECI. The provision allows the Council to authorise financial assistance from the EU to a Member State which is experiencing severe difficulties or a serious threat of severe difficulties caused by natural disasters or exceptional circumstances beyond its control. Once again, the ECJ referred to the case of Pringle where it had ruled that Article 122(2) TFEU cannot be used as the basis for the establishment of a general and permanent mechanism of non-repayment of debt (para 75). Since the ECI proposal suggested the deletion of debts owed by the Member States to both the EU and to public and private, natural or legal persons, it could not fall within the meaning of Article 122(2) TFEU, which concerns only financial assistance provided by the EU and not by the other involved persons (paras 76 and 77).

Finally, the ECJ confirmed the finding of the General Court that Article 136(1) TFEU cannot be used as a legal basis for the establishment of the principle of the state of necessity in EU law. According to the Court, the adoption of a measure such as the one suggested by the proposed Initiative cannot be seen as ‘economic policy guidance’ as envisaged by Article 136(1)(b) TFEU. To the contrary, the mechanism proposed by the ECI would replace the free will of contracting parties by 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 under each ground of appeal because of the limited scope of review in the context of the case at hand. On appeal, the ECJ can only review the findings of law on the case put forward by the parties in the case before the General Court. As such, a number of the arguments put forward by the appellant were not assessed on their merits, leaving a number of questions unanswered by the Court in this occasion. The first question is whether a Member State facing severe financing difficulties can invoke the so-called ‘state of necessity’ to receive debt relief not unilaterally, but subject to conditionality laid down by the Commission (paras 71-73). The second question is whether the Initiative could be adopted on the basis of Article 136(3) TFEU in conjunction with Article 352 TFEU (the ‘residual powers’ clause). Besides the procedural point concerning the inability of the ECJ to rule on the above two questions on appeal, one might also wonder whether the ECI-case of Anagnostakis would have been an appropriate occasion for the ECJ to make any bold declarations on the issue of a Member State’s debt relief.

The third question left open was whether the Commission should have partially registered the proposed Initiative only to the extent that the proposal suggested the relief of the debt owed by a Member State to the Union. The ECJ did not examine whether the Commission should have registered this interpretation of the proposal. As a more general observation, we should note that the procedural question of whether partial registration by the Commission is possible has now become redundant. Earlier this year, the Commission partially registered the Minority SafePack ECI while, as we will see 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 under the Commission’s Proposal for a New ECI Regulation

Five days after the ECJ’s decision in Anagnostakis, the Commission published its ‘Proposal for a Regulation of the European Parliament and of the Council on the European Citizens’ Initiative’, which suggests the adoption of a New ECI Regulation to replace Regulation 211/2011. In the proposed ‘New ECI Regulation’, the legal admissibility test has been moved from Article 4 to Article 6. The newly suggested provision retains the essence of the current procedure: organisers may only start collecting signatures supporting their ECI after they have submitted their request through the register (Article 6(2)), and the Commission has checked that the proposal satisfies certain legal and procedural criteria (Article 6(3) and (4)) and has registered the proposal (Article 6(1)).

Under the New ECI Regulation, Articles 6(3)(d) and (e) maintain the two legal criteria of the current ECI Regulation: a proposed Initiative will not be registered if it is manifestly abusive, frivolous or vexatious, or if it is manifestly contrary to the values of the EU (see Article 4(2)(c) and (d) of the current ECI Regulation). Perhaps the most notable changes are included in Articles 6(3)(c) and Article 6(4) of the New ECI Regulation compared with the current Article 4(2)(b) of the ECI Regulation. Article 6(3)(c) states that the Commission shall register a proposed initiative if ‘none of the parts of the initiative manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’. This Article should be read in conjunction with Article 6(4), which allows for the partial registration of an ECI by the Commission.

To put it simply (or, at least, as simply as possible), if the Commission considers that only parts of a proposal fall within its competence to propose a legal act, it has to send the proposal back to the organisers within one month, together with the reasons behind its assessment. The organisers then have the possibility – and the responsibility – to change and resubmit, to maintain, or to withdraw their initial proposal. It is not very clear why organisers might want to maintain a rejected proposal, which in all likelihood will simply be rejected again by the Commission. In case the organisers decide to change their proposal, however, they would have the responsibility of submitting the necessary amendments to the Commission. After receiving the amendments, the Commission would have one month to assess the new information and to either register, partially register, or reject the ECI (Article 6(4)).

Partial registration of an ECI would thus be formalised in the sense that the Commission would have to check if ‘a substantial part of the initiative including its main objectives’ does not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act. The proposed Regulation does not define what is to be considered ‘a substantial part’ of a proposed Initiative. Not only that, but the proposal shifts the burden on the organisers to re-consider their initiative and re-submit to the Commission, instead of obliging the Commission to specify which parts of the initial ECI proposal it can maintain for the purposes of registration. It will be interesting to see how the European Parliament will react to this, and the rest of the changes to the ECI legal framework proposed by the Commission in the New ECI Regulation, especially since MEPs have been advocating for a more user-friendly ECI in their contributions to the review of the current ECI Regulation.   

Photo credit: CNBC

New Developments in the context of the European Citizens’ Initiative: General Court rules on ‘Stop TTIP’

Anastasia Karatzia, Assistant Professor in EU Law, Erasmus University Rotterdam and currently Visiting Research Fellow at the School of Law and Social Justice, University of Liverpool

Introduction

A few months ago, we saw the first annulment by the EU’s General Court of a Commission Decision refusing registration of a proposed European Citizens’ Initiative (ECI), in the case of Minority SafePack. Last week, there was an even bigger development in the case law of the General Court regarding the interpretation of the ECI’s legal admissibility test: in the Stop TTIP case[1] the Court annulled another Commission’s Decision, this time not on a procedural ground such as the one in Minority SafePack, but on the substantive ground that the Commission breached Article 11(4) TEU (which sets out the power to adopt the ECI law), and Articles 2(1) and 4(2)(b) of the ECI Regulation, which sets out one of the criteria for the legal admissibility test.

In Stop TTIP, the General Court clarified a matter of contention between ECI organisers / stakeholders and the Commission viz. the scope of an ECI and, more specifically, the way in which the Commission had limited the acceptable subject-matters for the purposes of registering an ECI. These limitations were stipulated in the Commission’s letter of response regarding the refusal of registration for the proposed ‘Stop TTIP’ Initiative, which was submitted for registration in July 2014. The Initiative proposed to cease the negotiations for the Transatlantic Trade and Investment Partnership agreement (TTIP) between the EU and US, and to prevent the conclusion of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada.

In more detail, ‘Stop TTIP’ had invited the Commission to ask the Council to repeal its decision to authorise the opening of the TTIP negotiations under Article 218(2) TFEU (which is the legal rule on the process of the EU negotiating treaties). It also asked the Commission to submit a proposal for a Council decision not to conclude CETA. In September 2014, the Commission replied to the organisers that both their proposals had been rejected on the basis of Article 4(2)(b) in conjunction with Article 2(1) of the ECI Regulation, because they fell outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.

The Commission’s reply revealed two limitations on the scope of the ECI.[2] First, the Commission stipulated that an ECI cannot invite the Commission to adopt preparatory acts. The Commission argued in its reply that its proposals to the Council under Article 218 TFEU to authorise the opening of negotiations for international agreements were not proposals for legal acts. The Council Decisions authorising the opening of negotiations for an international agreement are preparatory acts that produce legal effects only between the EU and its Member States and between the EU institutions. Therefore, the Commission’s relevant proposals to the Council lacked legal effect against third parties. Accordingly, the position of the Commission was that ‘Stop TTIP’ was not proposing any legal acts for the purpose of implementing the Treaties and could not be registered. Second, the Commission declared that an ECI cannot invite the Commission to propose a decision not to adopt a legal act such as a proposal not to conclude CETA, or to refrain from proposing a legal act. Such a proposal ‘would not deploy any autonomous legal effect beyond the fact of the legal act at issue not being adopted.’ The negative nature of the ‘Stop TTIP’ proposals, together with the fact that it arguably did not propose ‘legal acts’ as required by Article 11(4) and Article 2(1) ECI Regulation, led to the refusal by the Commission to register it. Notably, the limitations imposed by the Commission are not clearly indicated in the ECI Regulation. Instead, they resulted from the Commission’s own interpretation of the ECI’s legal framework.

After the Commission’s rejection, the ‘Stop TTIP’ organisers followed a twofold course of action: they brought a case before the EU General Court, which is the first instance part of the Court of Justice of the European Union (CJEU), contesting the Commission’s decision to refuse registration of their Initiative, and they started what they named ‘a self-organised ECI’, which was a campaign to collect signatures outside the contours of the ECI’s legal framework. The campaign went on to collect more than 3 million signatures, which the organisers handed over to the Commission in October 2015.

It becomes apparent from the above overview that the significance of the General Court’s judgment in the Stop TTIP case does not derive only from the question of whether the specific Initiative was wrongly refused registration, but also from the question of whether the ECI’s scope to propose EU action was rightly limited by the Commission beyond what is explicitly written in the ECI Regulation. In this sense, the General Court’s judgment is a milestone both for the ECI organisers themselves and for the functioning of the ECI as a mechanism for citizens’ participation. This short commentary will touch upon the key aspects of the judgment.

The arguments of the parties

The applicants in the case made two main arguments. They claimed that the Commission (i) breached Article 11(4) TEU and Article 4(2)(b) of the ECI Regulation, and (ii) breached the principle of equal treatment (Article 20 of the EU Charter of Fundamental Rights) because it had registered in the past the ‘Swissout’ Initiative which had very similar objectives with ‘Stop TTIP’. The judgment focused on the first ground of review and did not deal at all with the second.

In support of their claim, the applicants brought forward three main arguments. Firstly, they argued that the Council’s Decisions authorising the conclusion of an international agreement under Article Article 218(5) TFEU is not a preparatory act. With regard to the Initiative proposals concerning the CETA negotiations, which were already taking place at the time of the request for registration, a Decision by the Council to the Commission not to conclude CETA would not be a preparatory act but an act with legally binding effects. Regarding the Initiative proposals concerning a proposal by the Commission to the Council to repeal the Decision authorising the negotiations for TTIP, such a Decision would result to the termination of the negotiations, and would have been final and legally binding. In any case, the scope of an ECI should not be limited to proposing legal acts with definitive, legally binding effects vis-à-vis third parties. Neither the background to the ECI Regulation, nor the ECI’s overall regulatory framework call for such a restrictive reading of the term ‘legal acts’ (para 12).

Secondly, the applicants argued against the Commission’s position that an ECI cannot concern acts that deploy legal effects only between the institutions concerned. For the purposes of the ECI, the term ‘legal act’ should be defined broadly in light of Articles 288 – 292 TFEU, and should include Commission’s Decisions that are outside the ordinary legislative process (para 13).

Thirdly, the applicants referred to the potentially ‘destructive effect’ of the proposed Initiative on the negotiations for TTIP and CETA. This alleged ‘destructive effect’ cannot be put forward as a ground for refusal under the rationale that the Initiative’s proposals did not have the purpose of implementing the Treaties. In the view of the applicants, ‘the right of citizens to participate in the democratic life of the Union includes the possibility of citizens acting with the purpose of modifying, reforming, ratifying, or asking for a partial or total annulment of EU law’ (para 14).

The Commission’s main counter-arguments supported the position expressed in its 2014 letter of response to the organisers. The Commission reiterated its position that the Council Decision to approve the opening of negotiations for an international agreement is only preparatory because it only produces legal effects between the two EU institutions. Based on a ‘systematic and teleological interpretation’ of Articles 2(1) and 4(2)(b) of the ECI Regulation, it can be concluded that an act of preparatory character falls outside the definition of a ‘legal act’ for the purposes of registering an ECI (para 19). This argument was further supported by the assertion that the notion of democratic participation in the EU refers to the participation of citizens only in matters which (potentially) fall under their legal sphere. Instead, the Council and the Commission enjoy sufficient democratic legitimacy to be the ones to adopt acts that affect the relationship between the EU institutions (para 20).

In addition, the Commission repeated its argument that an ECI cannot ask it not to propose a particular legal act or to propose a decision for the non-adoption of a legal act. Interestingly, it referred to Article 10(1)(c) of the ECI Regulation which deals with the final stage of the ECI process, whereby the Commission is obliged to issue a Communication setting out ‘the action it intends to take, if any’. From this, the Commission concluded that only ECIs that aim to the adoption of a legal act or to the repeal of an existing legal act can be registered. Otherwise, a declaration by the Commission that, as a response to an ECI, it does not aim to propose the adoption of a legal act would have 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 not to conclude an agreement, would have been an ‘unacceptable interference’ in an on-going legislative procedure (para 21).

The judgment of the General Court

The General Court began with a reference to the ECI’s legal framework. It mentioned Article 11(4) TEU, and the ECI Regulation, specifically Article 2(1) (definition of the ECI), Article 4(2)(b) (the legal admissibility test), and Article 10(1)(c) (the obligation of the Commission to respond to a successfully submitted ECI) (paras 23-27). It then explained that the ECI organisers had not asked the Commission not to submit a proposal to the Council for the signing and conclusion of TTIP and CETA. Instead, the organisers asked the Commission to submit to the Council two proposals: (a) a proposal to recall the authorisation for the opening of negotiations for TTIP; and (b) a proposal not to authorise the signing of TTIP and CETA and thus not to conclude these agreements (para 28). As such, the Court also clarified that the current case did not contest the competence of the Commission to negotiate TTIP and CETA. Instead, it was a challenge to the reasons given by the Commission for the refusal of the proposal (para 29).

Subsequently, the Court specified that the Commission has the competence to act in the way asked by the applicants, i.e. to submit to the Council the two proposals (paras 30-32), and went on to deal with the question of whether these actions can be excluded from an ECI either because they are preparatory acts, or because they are not necessary for the implementation of the Treaty, as the Commission had argued (para 33).

On the definition of a ‘legal act’ for the purposes of an ECI, the Court sided with the applicants: the notion of ‘legal act’ in Article 11(4) TEU, and Articles 2(1) and 4(2)(b) of the ECI Regulation cannot be interpreted to include only final EU acts with legally binding effects vis-à-vis third parties. The Commission’s position is not justified by the letter of the law or by the overall purpose of these provisions. This was all the more so since the actions in question, which concerned the conclusion of an international agreement, fit squarely into the definition of a ‘Decision’ in accordance with Article 288(4) TFEU, as clarified in Case 114/12 Commission v Council. Besides, a broad interpretation of ‘legal act’ is mandated by the democratic principle on which the EU is founded (Article 2 TEU) (paras 35-37).

In addition, the Court rejected the Commission’s argument that the Initiative could not have been registered because the suggested actions did not aim to the implementation of the Treaties and thus were destructive to the law-making process. According to the Court, there is nothing in Article 11(4) TEU or Article 2(1) ECI Regulation indicating that citizens cannot act through an ECI in order to prevent the adoption of a legal act. Furthermore, the conclusion of TTIP and CETA would have modified the EU legal order. As such, by advocating to stop the two agreements, the ‘Stop TTIP’ organisers were actually acting for the implementation of the current Treaties (para 41). In any case, Initiatives that propose the non-signature and non-conclusion of an international agreement produce legal effects since they may prohibit the modification of EU law intended by the said agreement (para 43).

Lastly, even though the Court did not explicitly address the applicants’ second claim on the unequal treatment of their Initiative in comparison with the Swissout Initiative, it did address the paradoxical situation that resulted from the treatment of the two Initiatives. This paradox resulted from the fact that, according to the Commission’s interpretation, an ECI could propose the termination of an existing international agreement but not the termination of the negotiations towards such agreement. The Court took a citizen-friendly approach in saying that citizens should not be obliged to wait until an agreement is concluded before they can contest the conclusion of the agreement through an ECI (para 44). In this sense, the Court has put proposals asking for the termination of negotiations on a par with those asking for the opening of negotiations, and has interpreted the scope of the ECI as being capable of encompassing both type of proposals.

Commentary

I had commented on an earlier publication that the ‘Stop TTIP’ case was a good opportunity for the CJEU to step in and point out the correct interpretation of Article 4(2)(b) of the ECI Regulation regarding proposals concerning the conclusion of international agreements. It would seem that the General Court has seized that opportunity. The judgment widens the scope of the ECI by completely overruling the Commission’s interpretation of legal admissibility in the particular context. In this sense, the judgment is a positive and constructive development not only for the ECI organisers, who had been waiting for it for almost three years, but also for those interested in starting an ECI campaign on a topic related to an international agreement, as well as for ECI stakeholders who have been calling for a more flexible legal admissibility test.

What makes the case especially interesting is the extensive reliance of the Court on the nature of the ECI as a democratic participation mechanism that intends to foster democratic dialogue and give citizens the opportunity to address the Commission in order to request action. For instance, the Court implicitly rejected the Commission’s first argument that a potential breach of Article 11(4) TEU was irrelevant and that the only relevant legal text should be the ECI Regulation which is based on Article 24 TFEU and 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) and that of ‘implementing the Treaties’ (para 41) relies on a joint reading of Article 11(4) TEU and the relevant provisions of the ECI Regulation. The Court even considered the ECI in light of the fundamental principle of democracy as included in the Preamble of the Treaty and the EU Charter of Fundamental Rights in order to broaden the scope of the right to bring an ECI beyond the Commission’s delineation (para 37).

In addition, the Court has held a more restrictive view than the Commission on what is an ‘unacceptable interference with the adoption of a legal act’ when it comes to an ECI. According to the Court, the very notion of citizens’ participation in the democratic life of the EU - of which the ECI is part - includes the possibility to ask for the modification, as well as the partial or total repeal of legal acts. A true form of citizens’ participation in the democratic life of the EU should give the opportunity to citizens to obstruct, or interfere with, the adoption of a legal act. Since it is entirely up to the Commission to decide the follow-up of a successfully submitted ECI after the public hearing of that ECI (Article 10 ECI Regulation), it could not be said that the registration of ‘Stop TTIP’ would have been an unacceptable interference with the legislative process or that it would have breached the principle of institutional balance (paras 45-46). It would seem, therefore, that the Court has taken into consideration the overall discretion of the Commission at the end of the ECI process when interpreting the legal admissibility test, which takes place at the beginning.

Given that this is only the second time that the General Court annuls a Commission’s decision to reject a proposed ECI, the answer to the question ‘what happens now?’ is not entirely 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 situation this time around is more complicated. As mentioned above, the ‘Stop TTIP’ organisers went ahead with collecting signatures despite the refusal of their ECI. Impressively, within one year (October 2014 – October 2015) the campaign collected around 3.3 million signatures, more than any of the formally registered ECIs. Subsequently, the organisers stated in their website: ‘we demand that the European Commission treat us like a regular ECI which means we expect an official response from the European Commission and a public hearing in the European Parliament.’ The Commission is now faced with interesting dilemmas: Will it register the ECI or pursue the case further by appealing before the European Court of Justice? If it does register the ECI, will it accept the collected signatures or will it oblige the organisers to start over? In its plans to propose revisions to the ECI in the near future, will the Commission try to overturn the new judgment – or accept and fully incorporate it?

The factor of time also makes the upcoming Commission’s response to this case particularly noteworthy. Between 2014 and 2017 we have seen major developments with regard to TTIP and CETA, including 15 negotiating rounds on TTIP up to October 2016 and a proposal in July 2016 by the Commission to the Council for the signature and conclusion of CETA. More recently, the European Parliament voted in favour of CETA after Wallonia nearly blocked the agreement. All of these developments are in fact the exact opposite of what the ‘Stop TTIP’ organisers were requesting in their proposal, which indicates the importance of momentum to an ECI’s overall success.

On a final note, I wonder what the implications of the General Court’s judgment are with regard to future ECIs relating to Brexit. It would seem that the judgment has opened the door to ECI proposals objecting to a possible future agreement on the UK-EU relationship, assuming that such an agreement will be eventually negotiated on the basis of Article 207 and 218 TFEU. Of course we have a long way to go before this issue even becomes relevant – if it ever becomes relevant at all. However, such a scenario would certainly open a new dimension to citizens’ participation and voice in the Brexit process. Meanwhile, let’s see how the Commission will respond to Stop TTIP and how the organisers will continue their campaign.

Photo credit: Stop TTIP

Barnard & Peers: chapter 24

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[1] The judgment is not available in English yet. This commentary is based on my own translation from the Greek version and any translation errors are mine.

[2] I had elaborated on the Commission’s Decision in an older publication: A.Karatzia “The European Citizens’ Initiative in practice: Legal admissibility concerns” (2015) 40 EL Rev. 509, pp. 516-518

European Citizens’ Initiative: General Court rules on the Commission’s obligation to give reasons for refusing to register proposals

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

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[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.

The European citizens’ initiative and EU competence over Greek debt ‘haircuts’

Professor Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

EU competence is a touchy area of EU law. It has become very complex, together with the also intricate case-law on legal bases, which, after several decades of case-law, is not always easy to follow. After the entry into force of the Lisbon Treaty, EU competence has become a major domain for EU constitutional lawyers and it deserves very careful attention. The fact that the Treaties now include a typology of EU competences and enumerate them is a sign that many future battles in EU law will be fought in this terrain.

Furthermore, cases like Pringle, Gauweiler (discussed here) or Vodafone prove that issues of competence and legal bases are not the exclusive domain of institutional litigation, but areas that can be brought to the courts by private parties too. The Court of Justice has always been sensitive to these cases and it has dealt with them with utmost care, mostly in Grand Chamber formation.

Last week a rather surprising route for EU competence litigation came under the radar. In the case of Anagnostakis (no English version available, I’m afraid), the General Court ruled on an action of annulment brought by a private party against the decision of the Commission to reject, on the grounds of lack of competence, a European citizens’ initiative (ECI). Mr. Anagnostakis, together with more than a million supporters, brought a proposal pursuant to Article 11.4 TEU (which provides for the existence of ECIs) and Regulation 211/2011 (which sets out the detail of the ECI process), demanding that the Commission introduce in EU legislation “the principle of state of necessity, according to which, when the financial and political subsistence of a State is at stake due to its duty to comply with an odious debt, the refusal of payment is necessary and justified”. According to the promoters, the legal base of the initiative was to be found in Articles 119 TFEU and 144 TFEU.

The Commission did not seem very impressed and, pursuant to Articles 4(2)(b) and (3) of Regulation 211/2011, it refused to register the proposal, based on a lack of competence.

Mr. Anagnostakis introduced an action of annulment before the General Court, attacking the Commission’s Decision for breach of Articles 122(1) and (2) TFEU, 136(1) TFEU and rules of international law.

The General Court dismissed the action, but it did not limit itself to scrutinizing the Commission’s duty to state reasons. Instead, the Court went into some detail in order to ascertain if haircuts in government debt are not only a competence of the EU, but also in conformity with EU Law. In a rather surprising format and procedural context, the General Court dealt quite openly with one of the Union’s hottest potatoes at the time: the unsustainable Greek public debt.

It is true that the judgment is quite laconic in its reasoning, but it relies several times on Pringle and Gauweiler when interpreting Articles 122 and 136 TFEU. But no matter how laconic it may be, the judgment makes an assertion that will probably not go unnoticed when the Greek public debt becomes politically toxic again. In paragraph 58 of the judgment, the General Court states that “the adoption of a legislative act authorizing a Member State to not reimburse its debt, far from being a part of the concept of economic policy guidelines in the sense of Article 136.1.(b) TFEU […] it would have the effect of substituting the free will of the contracting parties by a legislative instrument allowing for a unilateral abandonment of public debt, which is clearly not what the provision allows” (free translation).

The assertion might be formally correct in light of the limited scope of Article 136(1)(b) TFEU, but the language of the judgment is politically explosive. Even in legal terms, one wonders if Pringle was openly precluding any kind of haircut of government debt by any means. After reading the General Court’s decision in Anagnostakis, it seems that haircuts will be mission impossible in the future, despite the circumstances, the consensus among Member States (the IMF has been explicitly positive about a future Greek haircut) and, above all, the terms and scope of the haircut.

But of course, this judgment could be just a superficial decision undertaking a superficial degree of scrutiny due to the peculiar procedural context of the case. It could be argued that highly contested issues such as the EU’s competence in the area of EMU is something should be left to the Court of Justice, but not to the General Court in the circumstances of a case like Anagnostakis. The General Court might be aware of this and thus the brief and straight-forward reasoning of the decision. However, after reading the judgment several times, the more I read it the more explosive it sounds to me.

*Reblogged from the Despite our Differences blog

Barnard & Peers: chapter 5, chapter 19

Photo credit: www.thenation.com

On really responsive rule-making? The EU-US transatlantic trade and partnership (TTIP) negotiations

Dr.Elaine Fahey, Senior Lecturer, The City Law School, City University London

The script

The EU and US have now completed 6 rounds of negotiations on the Transatlantic Trade and Investment Agreement (TTIP), the trade agreement under negotiation between the EU and US to cut trade barriers and ‘behind the borders’ barriers (technical regulations, standards, approvals) in a wide variety of sectors. It is touted as having the potential to become the global trade standard. Already, the epitaph is alleged to have been written on the Agreement. Yet while this misses the mark as to the theatre of global rule-making, on the other hand, skepticism is not unwarranted. It has at times appeared as an extraordinary experiment in rule-making.[1]  TTIP harbours ambitions to grow as a living regulatory entity. It has become rife with controversy, for its secrecy, for its possible inclusion of the Investor Settlement Dispute Mechanism (ISDM) and its impact on EU regulatory standards. Some have even tried to stop the negotiations using EU law itself, in the form of a failed European Citizens Initiative.

The history of transatlantic relations is littered with many failed attempts to integrate EU and US legal order through mutual recognition, even in very limited fields. TTIP had been poised to shake up this dynamic. It has become an exercise in ‘really responsive rule-making’. However, many questions remain about international negotiations and the standard of what is and should be ‘really responsive EU rule-making’:- I reflect on its script, production process and the cast of actors.

The production process

Most EU-US rule-making processes in the past has been conducted firmly behind closed doors, in inscrutable so-called ‘Dialogues’, in a range of fields that many will never have heard of. They traditionally privileged industry. The TTIP negotiations have marked an enormous shift in EU-US rule-making.

The TTIP negotiations have been ostensibly very open as a process. There is a lively EU TTIP twitter account (@EU_TTIP), RSS feeds, video-streamed meetings, broad public consultations and prolific document dissemination- more ‘quantitatively’ than its harshest critics might care to admit. In fact, the EU often has appeared as a transparency ‘manna’ in contrast to the tight-fisted US provision of information, even tweeting about its own transparency or pictures of public consultations and meetings. However, the TTIP negotiation mandate and draft text have long been leaked alongside the official channels of information, posted in reputable German broadsheets like Die Zeit, as well as dedicated leaking forums: http://eu-secretdeals.info/ttip/).  This leaking has threatened to take the wind out of EU openness sails.

The Ombudsman late into the negotiations recently raised questions as to the true place of openness in the negotiations and launched a public consultation. Her actions appear inadequately searching, and even late in the game. A range of key CJEU decisions on transparency in 2014 (in’t Veld, Mastercard etc; see the previous blog posts on those cases here and here) have not done enough to dent the exception surrounding international relations as regards access to information. In fact, the leaking of the EU-Canada free trade agreement (CETA) in August this year by the German broadcaster ARD demonstrates the truly dented credibility of the state of openness, international negotiations and the EU.

The cast of actors

The response by the Commission to steep and sharp public scrutiny of TTIP have been to set up more civil society dialogue engagement points (eg civil society advisory bodies) and more floods of consultations. These processes have delivered only partially-scrutable results. For example, it received nearly 150,000 for the ISDM, over half which will we never know about. The involvement of civil society in the TTIP negotiations has arguably become quite unwieldy.

The responses of the would-be incumbent trade Commissioner Malmstrom to the ISDM saga have provoked scorn for her breath-taking flip-flopping on its inclusion or exclusion from TTIP. The ‘flexibility’ about the normative agenda through ‘really responsive rule-making’ is a serious concern.

There is still much scope for more truly responsive rule-making, for example, a more vibrant institutional dialogue and for parliamentary participation, at both national and EU level. The powers of the European Parliament to approve any agreement reached have been raised as both a shield and a sword to any would-be critics of its credentials as a rule-making project. Many explore its potential within a living regulatory entity.[2] However, the vastness of the rule-making exercise may warrant a pause for thought on this. For the newly elected Parliament to make an impact on the negotiations, it must surmount a significant information gap and grasp the mantle of data. The place of data transfer within TTIP has had endless twists and turns- first the NSA affair, then the Google decision, then the decision by Microsoft to shift cloud computing and comply with EU law. Yet it risks being swallowed up within the broad swathe of TTIP. The TTIP negotiators face the question of how to be really responsive to this- and whether the European Parliament and Congress- neither a homogenous entity- will accept it all.

A battle is often bitter because the stakes are so small. EU-US trade relations have never been more liberalized or responsive to each other. It colours the context of what the stakes actually are. How ‘really responsive’ the negotiations can and should be has some legal and political distance to travel.

Editor's note: This blog post was previously published on the eutopia blog; thanks for permitting it to be reblogged here.

 

Barnard & Peers: chapter 3, chapter 24

 

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[1]See E. Fahey & M. Bartl ‘A Postnational Marketplace: Negotiating the Transatlantic Trade and Investment Partnership (TTIP)’ in E. Fahey & D. Curtin (Eds.), A Transatlantic Community of Law: Legal Perspectives on the Relationship between the EU and US legal orders (Cambridge: Cambridge University Press, 2014).

 

[2] Parker, Richard W. and Alemanno, Alberto, Towards Effective Regulatory Cooperation Under TTIP: A Comparative Overview of the EU and US Legislative and Regulatory Systems (May 15, 2014). European Commission, Brussels, May 2014. Available at SSRN: http://ssrn.com/abstract=2438242.