Advocate General Bobek on One of us – Legal Clarity vs Political Debate

By Jasmin Hiry

On 29 July 2019, Advocate General Bobek confirmed the General Court’s ruling in One of Us. His opinion in Case C-418/18P Puppinick and Others v European Commission has been much awaited, as it deals with a so far largely unaddressed aspect of the European Citizens’ Initiative (ECI) – the potential outcome of a successful initiative.

Background

The ECI was introduced with the Lisbon Treaty and constitutes the first supranational tool of participatory democracy. It allows one million citizens, from at least one quarter of the Member States to invite the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties (Article 11(4) TEU & Article 7 Regulation 211/2011). Regulation (EU) No 211/2011, which will soon be replaced by Regulation (EU) 2019/788, lays down the concrete procedure and conditions required for an ECI. The procedure consists of three steps – (1) registration, (2) collection of support and ultimately, (3) submission of a successful initiative, which is one that meets the threshold of one million supporters, to the Commission for examination. So far, the case law has largely dealt with the first stage of this procedure (see e.g. C-589/15 P Anagnostakis or C-420/16P Izsák and Dabis). Puppinick, however, is the very first case before the Court of Justice dealing with the outcome of an ECI.

Procedure before the General Court

Mr. Puppnick and his six fellow appellants are the organizers of the successful ECI ‘One of us’. The initiative invited the Commission to introduce a ban on the ‘financing of activities which presuppose the destruction of human embryos, in particular in the areas of research, development aid and public health’. Responding to the ECI, the Commission set out in its Communication that it would not follow any of the requests submitted by the organizers. Unsatisfied with the Commission’s decision, the latter sought an action for annulment in front of the General Court, which dismissed the applicants claim. Article 11(4) TEU as well as the Regulation itself (specifically Article 10(1)(c)) suggest that the Commission is not bound to follow a successful ECI, but retains discretion as to ‘the action it intends to take, if any’ (§74) [emphasis added]. The Court further clarified that the Communication of the Commission had been sufficiently reasoned as the Commission discussed all three concrete requests and outlined its reasons as to why it did not intend to follow any of them (§150-153). Equally, the Court did not find an error of assessment in the Commission’s Communication. In doing so, the Court established that the Commission decision is subject only to a limited review due to the broad discretion enjoyed by the institution. The review applied may therefore only verify ‘the adequacy of statement of reasons as well as the existence of a manifest error of assessment vitiating the decision’ (§170). Considering the substantive reasons relied on by the Commission, the Court did not find such a manifest error. It hence dismissed the action in its entirety.

Opinion of the Advocate General

On 26 June 2018, the applicants brought an appeal against the General Court’s decision asking the Court of Justice to set aside the former’s judgment and annul the Commission’s Communication. They rely on five pleas in law, which Advocate General Bobek addresses individually in his opinion delivered on 29 July 2019.

By the first ground of appeal the organizers argue that the General Court erred in law in its interpretation of the scope and meaning of Article 11(4) TEU and of the ECI Regulation. They submit amongst others that Article 17(2) TEU, which grants the Commission the right to propose legislative acts, ‘does not mean that the Commission has unlimited discretion regarding the adoption of a proposal in relation to a successful ECI’ (point 30). AG Bobek rejects the applicants’ arguments as the suggested interpretation is neither supported ‘by the wording and genesis of the relevant provisions (a), nor by a systematic and contextual consideration of the ECI mechanism within the interinstitutional decision-making process (b), nor by the (properly identified) aims and purposes of the ECI (c)’ (point 32 of the Opinion). He firstly points out that (a) Article 11(4) TEU uses the word ‘invitation’, which suggests the optional character of the Commission’s follow-up to a successful ECI (points 33-37). Furthermore, (b), the context of the ECI does not support the interpretation advanced by the applicants. The Commission is given a ‘near-monopoly’ on the power of initiative, which has been reinforced throughout the European integration process by both the High Contracting Parties and the Court (points 46-54). Neither Parliament nor Council are given a binding right of initiative. Therefore, accepting the binding character of a citizens’ initiative would essentially give more weight to ‘a (vocal) fraction’ of citizens than to both these institutions, which are legitimized by all citizens either directly (Parliament) or indirectly (Council) (point 56). Lastly, (c) the Advocate General points out that the ECI ‘forms part of a wider attempt to engrave the democratic principle’ (point 67) and thereby aims to ‘promote dialogue between citizens and the EU institutions’, as opposed to abandon ‘the legislative monopoly of the Commission’ (point 71).

By the second ground, the applicants claim that ‘the General Court erred in not finding that the Communication does not set out its legal and political conclusions separately’ (point 24). While Article 10(1)(c) of the Regulation obliges the Commission to set out in a Communication its legal and political conclusions on the successful citizens’ initiative, recital 20 further holds that those conclusions should be ‘separate’. The General Court relied on the fact that the body of the Regulation takes precedence over its recitals. The Commission would therefore not be under an obligation to draft the conclusions separately (§130 of the General Court’s judgment). Advocate General Bobek finds this interpretation to be vitiated by an error in law. He does not consider the word ‘separately’ to be a contradiction to the obligation outlined in Article 10(1)(c). This notion can therefore be read into the latter’s wording (points 91-95). However, this error does not affect the operative part of the judgment and the ground of appeal should therefore be rejected as ineffective (points 91, 107).

By the third ground, the applicants ‘claim that the General Court failed to review the Communication with the correct level of scrutiny’ (point 24). This question closely relates to the finding that the Commission is under no obligation to follow the successful ECI. It is settled case-law that the intensity of judicial review depends on the discretion enjoyed by the institution concerned (point 123). Where the Commission enjoys broad discretion, the judicial review of the exercise of discretion must be a limited one (point 125). This is further confirmed by the political nature of the Commission’s decision. In light of the principle of institutional balance, EU Courts may not ‘substitute the political assessment made by the Commission’, which in essence renders a stringent judicial review impossible (points 126, 127). The AG therefore concludes that the third ground of appeal is unfounded.

The applicants fourthly argue that ‘even if the level of review applied was correct, the General Court failed to hold that the reasons provided in the Communication satisfied the test of manifest error’ (point 24). Advocate General Bobek dismisses this ground as partly ineffective and partly unfounded. He finds that some of the points raised by the applicants, which are allegedly vitiated by a manifest error of assessment, are based on an ‘incorrect understanding of the General Courts judgment’ (point 138) or on a ‘questionable reading of the Communication’ (point 144). One point relies on a proposition that is effectively absent from the Commission’s Communication (point 146), and as for the alleged misapplication of C-34/10 Brüstle, AG Bobek finds that the applicants’ inferences drawn from this case ‘go far beyond [its] proper scope’ (point 132).

By the fifth ground of appeal, the applicants ‘submit that the General Court erred in mischaracterising the objective of the ECI by stating that its object was not the protection of the dignity of the embryo as a human being’ (point 24). In dismissing this ground, the AG points out that the Commission rightly considered the objectives of the ECI as those described as such by the organizers themselves and did not further take account of the ‘subject matter’ to construe the objectives (point 156-158). Even further, had the Commission considered the protection of dignity of the embryo as a human being to be part of the objectives, this might have affected the decision to register the ECI in the first place (point 158).

Having dismissed all five grounds of appeal, Advocate General Bobek concludes that the appeal should be dismissed in its entirety.

Comment

Puppnick will give the Court of Justice for the first time the chance to rule on the Commission’s obligation to submit a concrete proposal following a successful citizens’ initiative. The General Court had not found such an obligation, and its judgment has now been confirmed by Advocate General Bobek. The central theme of the latter’ opinion is not only the legal interpretation of the ECI, but equally its effectiveness as a tool of participatory democracy. The law and the genesis of the citizens’ initiative are quite clear on the question of whether the Commission is obliged to submit any concrete proposal. As outlined in the AG’s opinion, there is little room for interpretation under the current legal framework to establish such an obligation. Article 11(4) TEU read in conjunction with both the current and the future Regulation do not allow such a finding. In spite of this lack of ambiguity of the law, the applicants claim that not finding an obligation on part of the Commission would render the ECI itself ineffective, and ‘a false promise’. According to Advocate General Bobek, under the current legal framework it seems that the applicants try to interpret the ECI as something it simply is not designed to be. In his words, ‘a kind of purposive switch is suggested, by asserting that the effet utile of a rabbit would be lessened if it were not interpreted as being a pigeon. But, unless some genuinely advanced magic is employed, and the audience is successfully induced to believe that the aim and purpose of looking at a rabbit is to see a pigeon, a rabbit remains a rabbit’ (point 64). This metaphor shows quite clearly that the ECI is not designed to be a real right of initiative. Trying to interpret it as such, fails to acknowledge its real purpose – to ‘foster participation of citizens in the democratic process and promote dialogue’. Under the new Regulation 2019/788, the legislature even formally calls the ECI a tool to foster debate and thereby emphasizes the wish to refrain from transforming it into a binding right of initiative.

On another level, the clarity of the law does not render the nature of the ECI politically undisputed. Advocate General Bobek himself is clear on the fact that just because the law stands as it currently does, does not mean that it is good law (point 84). Indeed, the heavy organizational burden of the ECI has been frequently criticized in the past, and even more so in light of the limited outcome of a successful initiative. Perhaps, the newly to-be-appointed Commission, under Commission President Ursula von der Leyen, will reconsider the matter. Von der Leyen stated in her opening statement in the European Parliament on 16 July 2019 that she wants ‘European citizens to play a leading and active part in building the future of our Union’. Giving more – or rather real – power to the ECI might indeed enable citizens to play such a role, beyond a mere involvement in a one-time event – the envisaged Conference on the Future of Europe. In light of yet another promise she gave during her speech, namely to ‘support a right of initiative for the European Parliament’, it might be time to generally reconsider the ‘near-monopoly’ on the right of initiative of the Commission. What might have been able to meet the needs of the 1957 European Economic Community, might not be designed to address the current needs of the European Union of 2019, which keeps struggling in the search for democratic legitimacy.

To conclude, in the pending judgment, one might expect the Court of Justice to follow Advocate General Bobek’s opinion. The legal framework indeed seems rather unambiguous, potentially rendering an opposing interpretation, as suggested by the applicants, contra legem. As for the ongoing political debate about the nature of the ECI, this is a matter, which cannot – and should not – be resolved by the judiciary, but is a question to be addressed by the legislature, if it wishes to do so. Therefore, not only the Court’s decision on the matter is eagerly awaited but also the reactions of the legislature shall be instructive as to the future of the ECI as a tool of participatory democracy.