By Michal Kutlík
A perceptive follower of the development of the case-law on access to court and justice in general might have noticed that the less willing the Court of Justice to loosen up the constraints in regard of the locus standi for non-privileged applicants, the more generous it seems to be towards the actual acts which can be amenable to judicial review. Be it for the reasons of democracy and rule of law or for the broadening of its competences, it is apparent that the Court is following this path.
This post shall provide a concise view on one of such cases, namely the recent judgment of the Grand Chamber of the Court of Justice in case C-261/13 P Schönberger v Parliament, where the Court assessed the decisions adopted by the Petitions Committee of the European Parliament (Parliament), by which a petition is either found admissible and further processed or declared inadmissible, in view of the possibility to challenge such decisions before the EU Courts.
1. Judgments in Tegebauer and Schönberger
In order to understand the background of this appeal case, one has to go a bit back into the history and have a look at the first case, where the Court of First Instance (CFI, now the General Court) dealt with an action from an unsuccessful petitioner.
In case T‑308/07 Tegebauer v Parliament, the applicant brought an action for annulment of the decision of the Petitions Committee, a committee of the Parliament responsible for dealing with petitions from the EU citizens or residents brought forward under Article 227 of the Treaty on the Functioning of the European Union (TFEU) . In this particular case, the applicant, Mr. Tegebauer, questioned mainly the fact that the decision, by which the committee found his petition not to fall within the areas of activity of the Union and therefore considered it inadmissible, completely lacked justification as to the reasons for adopting the decision on the inadmissibility of the petition.
The CFI dealt with the admissibility of the action as well as with the substance, concluding that an inadmissibility decision and no further action by the Petitions Committee is likely to affect the essence of the right of citizens to petition enshrined in the Treaty and therefore constitutes a decision which may be the subject of an action for annulment. As for the substance, the CFI found that since a decision not following a petition filed by a citizen to Parliament has consequences for the holder of that right as it is likely to affect the very effectiveness of the right to petition, that decision must be made by a reasoned decision, clearly showing the grounds which justify no further action of the petition.
In view of the fact that the judgment in the said case was not appealed to the Court of Justice, the GC followed this reasoning also in the case T-186/11 Schönberger v Parliament , however, this time, the applicant’s petition was declared admissible by the Petitions Committee, but, as Mr. Schönberger alleged, not properly handled in the subsequent steps.
The GC assessed only the inadmissibility argument of the action by mainly repeating the assessment conducted in T-308/07 Tegebauer v Parliament. It stated that the Petitions Committee cannot make decisions binding on other EU institutions or bodies of the Parliament and the means of action available to it, when handlin the petition, are political in nature and not binding. The decision of the Petitions Committee on the conclusion of the examination of a petition is therefore not a decision that can be the subject of an action for annulment under Article 263 TFEU.
Dissatisfied with the GC decision, Mr. Schönberger made an appeal to the Court of Justice.
2. Judgment of the Grand Chamber
The case was assigned to the Grand Chamber of the Court of Justice (Court), which examined first the argument whether the GC erred in dismissing the action for annulment as being inadmissible.
The Court reiterated that, pursuant to the first paragraph of Article 263 TFEU, the Court is required to review the legality of acts of the Parliament which are intended to produce legal effects vis-à-vis third parties. Acts the legal effects of which are binding on, and capable of affecting the interests of, an applicant by bringing about a distinct change in his legal position are acts which may be the subject of an action for annulment.
The Court continued that the right of petition as set out in the treaties is a fundamental right which is to be exercised under the conditions laid down in Article 227 TFEU and which constitutes an instrument of citizen participation in the democratic life of the European Union. It is one of the means of ensuring direct dialogue between citizens of the European Union and their representatives.
The Court went on that the nature of the relationship between the Parliament and those who address it by means of a petition is confirmed by the rules laid down by the Parliament for the examination of petitions in Rules 215 to 217 of the Rules of Procedure of the European Parliament, examining in particular the procedure foreseen under Rule 215 and 216 of the Parliament’s Rules of Procedure, which deal with the formal conditions of the petitions and the subsequent action to be taken by the Committee on Petitions.
From such an assessment of the rules, the Court suddenly jumped to the conclusion that “in those circumstances, a decision by which the Parliament considers that a petition addressed to it does not meet the conditions laid down in Article 227 TFEU must be amenable to judicial review, since it is liable to affect the right of petition of the person concerned. The same applies to a decision by which the Parliament, disregarding the very essence of the right of petition, refuses to consider, or refrains from considering, a petition addressed to it and, consequently, fails to verify whether it meets the conditions laid down in Article 227 TFEU.”(para. 22)
The Court went on to distinguish two types of situations depending on the outcome of the admissibility assessment. In case the Parliament takes the view that the conditions laid down in Article 227 TFEU have not been met and thus adopts a negative decision, it must provide a sufficient statement of reasons to allow the petitioner to know which of those conditions was not met in his case.
On the other hand, where the petition meets the conditions laid down in Article 227 TFEU, the Parliament has a broad discretion of a political nature, as to how that petition should be dealt with. Such a decision taken in that regard is not amenable to judicial review, “regardless of whether, by that decision, the Parliament itself takes the appropriate measures or considers that it is unable to do so and refers the petition to the competent institution or department so that that institution or department may take those measures.”(para. 24)
Since in the present case the Parliament examined the petition, declared it admissible and decided to refer it to the Parliament’s Director-General for Personnel for further action, thereby dealing with the petition in the manner, which it deemed appropriate, the Court dismissed the appeal as unfounded.
3. Final comments
Looking at the judgment in the appeal case, it is quite clear what the Court wanted to convey to the Parliament: you cannot disregard a citizen’s petition in such a way that you either refuse to consider it completely or you provide such an insufficient reasoning that the petitioner has no clue on the reasons for the rejection.
This seems to a positive step towards more transparency, which reinforces the position of potential petitioners, but on a closer look, it creates some, and not little, legal uncertainty.
First of all, the Court was not convinced by the Opinion of the Advocate General (AG) Jääskinen, who proposed that the judicial review of all decisions by the Petitions Committee must be precluded under Article 263 TFEU in so far as those decisions are not challengeable acts within the meaning of that Article. However, the judgment in the appeal case does not provide a convincing explanation as to why the exercise of the right to petition should be subject to judicial review by the EU Courts. Instead of examining the right to petition within the Treaties and drawing an analogy to similar rights and procedures under EU law, as the AG did in his opinion, the Court starts with describing the procedure of handling petitions under Parliament’s Rules of Procedure and suddenly jumps to the conclusion that such a negative decision of the Parliament declaring the petition inadmissible or failing to deal with it at all must be reviewable by EU courts.
On the other hand, the Court found that if the Parliament finds the petition admissible, further actions taken are not amenable to judicial review, because the Parliament has a broad discretion of political nature as to how the petition is further dealt with, “regardless” of whether the Parliament deals with the petition directly or further refers it to other competent authorities.
Simplified, one could conclude that while the negative decision as regards the petition’s admissibility is subject to full judicial review of the EU judge, any subsequent decision in regard of a positive petition cannot be challenged before the EU courts, regardless of how the Parliament addresses the petition.
It is difficult to understand why the Court did not to introduce at least some limitation in the form of a “manifest error of assessment” examination, resulting in a less strict review of the Parliament’s actions in regard of an admissible petition. If the Court sought the protection of the essence of the right to petition, the fact is that this right can be equally disregarded in either situation. And not to mention that in practical terms, it makes no big difference for the petitioner whether the petition is declared inadmissible in the first step or considered admissible, but not adequately (i.e. not at all) dealt with by further actions of the Petitions Committee, since the outcome is the same.
It remains to be seen if the judgment in the case C-261/13 P Schönberger v Parliament somehow changes the approach of the Petitions Committee and of the Parliament in general when dealing with petitions and their admissibility. One thing is certain though, the Court could be more clear and thorough in its assessment of fundamental rights and the subjection of their exercise by the EU institutions to judicial review.
 Now Article 227 TFEU, previously 194 EC.