The European Citizens’ Initiative: no real right of initiative but at least more significant than a petition to the Parliament?

On 19 December 2019, the Court of Justice (CJEU) sitting as a Grand Chamber confirmed the General Court’s judgment in One of Us. The judgment has been eagerly awaited as it was expected to put an end to the old discussion of what a successful European Citizens’ Initiative can or cannot achieve (for the discussion see e.g. here or here).

Background

The European Citizens’ Initiative (ECI) allows one million citizens 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 3 Regulation 2019/788). As of 1 January 2020, Regulation (EU) 2019/788, which repealed Regulation (EU) No 211/2011, lays down the concrete procedure and conditions required for an ECI.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. In C-418/18 P Puppinck and Others v Commission the Court clarified the very last of these steps – the examination by the Commission and the resultant outcome of a successful ECI.

The General Court’s ruling

Mr. Puppnick and his six fellow appellants are the organizers of the successful ECI ‘One of us’. They invited the Commission to introduce a ban on the ‘financing of activities which presuppose the destruction of human embryos’. The Commission, however, decided not to follow any of the requests submitted. The organizers thus sought an action for annulment before the General Court. The latter found Article 11(4) TEU as well as Regulation (EU) No 211/2011, which continues to apply to European Citizens’ Initiatives registered before 1 January 2020, to 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 contested Commission communication had been sufficiently reasoned as it clearly outlined the reasons as to why the Commission did not intend to follow any of the organizer’s requests (§150-153). Moreover, the Court established that the Commission decision is subject 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.

The CJEU’s ruling

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 communication in question. In its recently rendered judgment, the Court dismisses all five grounds of appeal raised by the applicants. As the Court mostly followed the Advocate General’s Opinion (previously discussed on this blog), it suffice for the present analysis to focus on the two most important issues of the case: the scope and meaning of Article 11(4) TEU and the extent of review to be applied to the Commission’s communication.

As regards the interpretation of Article 11(4) TEU, the appellants claim that the General Court misinterpreted the provision in question and thereby ‘failed to appreciate the specific character’ of the ECI (§45). If the Court were not to follow the appellants’ arguments, the latter claim that this would not only deprive the ECI of its effectiveness, it would perhaps even more importantly result in ‘failing to address the democratic deficit of the European Union’ (§49).

The Court rejects this ground for appeal in three steps. It firstly stresses the wording of the provisions in question. Article 11(4) TEU uses the term ‘invite’ and Article 10(1)(c) of Regulation No 211/2011 sets out that the Commission is to set out the action it intends to take ‘if any’ (§57). The Court, therefore, concludes that both provisions read in conjunction confirm the optional character of the Commission’s action in response to an ECI. Secondly, the Court acknowledges the background of the ECI (§58-62). According to Articles 17(2) TEU and 289 TFEU, the Commission holds the right of initiative for legislative acts. Article 17(1) TEU, in turn, requires the Commission to promote the general interest of the Union in exercising its right of initiative, something that would not be possible if it were obliged to follow the requests of a successful ECI (§59). Furthermore, the Court points out that the Regulation itself stresses that the ECI is to be comparable to the right of initiative of both the Parliament and the Council under Articles 225 and 241 TFEU respectively. It is apparent from both these provisions that neither institution can force the Commission to follow up on its ‘request’ (§61). Lastly, the Court observes that just because the Commission is not obliged to follow the requests of a successful ECI, the tool is far from ineffective (§66). Not only does that Commission have to publish the ECI, it also has to receive the organizers to give them a chance to explain their cause. The clear advantage of the ECI, therefore, lies ‘in the possibilities and opportunities that it creates for Union citizens to initiate debate on policy within the EU institutions without having to wait for the commencement of a legislative procedure’ (§68-70).

As regards the extent of review to be applied to the communication, the applicants allege that the General Court erred in law by subjecting the latter to a limited review restricted to an assessment of manifest error (§84). The Commission, in turn, asks the Court to reject this ground. It refers to its Grand Chamber ruling in Schönberger v Parliament, where the Court found that the decision as regards how an admissible petition to the European Parliament under Article 227 TFEU should be dealt with is not amenable to judicial review. According to the Commission, subjecting a Commission communication in response to an ECI to full review would, therefore, be inconsistent (§110 AG’s Opinion).

It is interesting to see that the Court delves quite deeply into the distinction between petitions to the Parliament and the ECI. The Court had stressed in Schönberger that only the decision of the Parliament to declare a petition admissible/inadmissible is one that is ‘intended to produce legal effects vis-à-vis third parties’ and is therefore reviewable under Article 263 TFEU (§22 Schönberger). In contrast, the decision of how to deal with the petition is characterized by broad discretion of political nature and therefore not amenable to judicial review (§24 Schönberger). While one might be tempted to find a similarly broad discretion on the part of the Commission as regards the follow-up of the ECI – as has been argued by the Commission, and considered a conceivable interpretation by Advocate General Bobek (footnote 67 of his opinion on the case) – the Court does not accept such a conclusion. It stresses that the ECI is subject to ‘strict conditions and to specific procedural safeguards’ for both the organizers and the Commission (§91). One such procedural aspect, as set out in Article 10(1)(c) Regulation 211/2011, requires the Commission to ‘set out in a communication its legal and political conclusions on the citizens’ initiative, the action it intends to take, if any, and its reasons for taking or not taking that action.’ According to the Court, the aim of those requirements is, on the one hand, to inform the organizers of the reasons that lead the Commission to take certain actions, and on the other to allow for judicial review of the Commission’s decision (§92). In light of these additional procedural guarantees in favour of the organizers, the Court concludes that unlike the Parliament’s decision following a petition, the Commission’s communication responding to a successful ECI is to be subject to judicial review.

As regards the extent of review, the Court concludes that where the institution adopting the act enjoys broad discretion and takes political choices, ‘judicial review of the assessments that underpin the exercise of that discretion must consist in determining the absence of manifest errors’ (§95, citing Slovakia and Hungary v Council). The Court therefore rejects the organizers’ claim and ultimately the appeal in its entirety.

Comment

With its judgment in Puppnick, the Court settles the outstanding question relating to the outcome of a successful ECI. While particularly organizers of ECIs might have hoped for a different outcome, the Court finds that the Commission is not legally obliged to follow the requests of a successful ECI. In light of the unambiguous wording of article 11(4) TEU in conjunction with both Regulation 211/2011 and Regulation 2019/788, this finding was to be expected. It is hard to see how the Court could have ruled differently on this aspect without disregarding the law and exceeding the limits of its mandate.

Nevertheless, one very fundamental question remains. If the Commission is free to respond to a successful citizens’ initiative, as it desires, why should citizens go through the hassle of organizing an ECI in the first place? It is in this light that AG Bobek had previously discussed the tool’s purpose. Rather than a ‘real’ right of initiative, as has been tried to argue by the applicants, the ECI should be seen as a tool to promote public debate without having to wait for the launch of a legislative procedure (§73 and 78 AG’s opinion, as confirmed by recital 5 Regulation 2019/788). The Advocate General stressed that the further significance of the ECI lies in the ‘enhanced visibility for certain topics or concerns; [the] privileged access to EU institutions, enabling those concerns to be tabled in a robust way; and […] the entitlement to a reasoned institutional response facilitating public and political scrutiny’ (§73 AG’s opinion). While the Court refrains from discussing the purpose of the ECI in as much detail as the AG had done, it nevertheless seems to approve and defend the latter in light of its comparison with the right to petition the Parliament under Article 227 TFEU. In Schönberger, the Court found a petition under the said provision to be a tool to ensure ‘direct dialogue between citizens of the European Union and their representatives’ (§17). In this light, it concluded that the Parliament’s decision of how to deal with an admissible petition is a decision of a political nature characterized by broad discretion and therefore shielded from judicial review. The ECI, in contrast, aims to foster debate – not merely dialogue – and aims to facilitate the participation of as many citizens as possible in the democratic decision-making process of the Union (Recital 5 Regulation 2019/788).  It is also subject to a far more cumbersome procedure than a petition. According to the Court, these two aspects taken together justify the review by EU Courts of the Commission’s decision, even where the latter enjoys considerable discretion. In light of the applicants’ arguments, this finding might appear far from ground-breaking. However, considering that a contrary interpretation would have also been conceivable, one needs to appreciate the (admittedly small) step taken in favour of the ECI. While the Commission remains free to decide which actions to take following a successful initiative, in doing so, it is bound to state reasons for its decision, which are to be free of manifest errors of assessment. This obligation, in conjunction with the rest of the procedure, indeed enables the ECI to fulfil its purpose, namely to foster debate – a purpose which, compared to a petition, has a far bigger reach.

To conclude, with the present judgment, the Court brings to an end what has been a long debate on the nature of the European Citizens’ Initiative. While clearly not a ‘real’ right of initiative, the ECI, in conjunction with the right to petition the Parliament under Article 227 TFEU, nevertheless deserves its position within the Union’s constitutional order. In retrospect, one cannot help but wonder whether much frustration – and litigation, in fact – could have been avoided had one omitted the word ‘initiative’ in the instrument’s name in the first place. Perhaps a title that would have stressed its agenda-setting nature, rather than one that suggests a legislative character, would have been more suitable.