_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

Several months ago, a significant legal development took place regarding the European Citizens’ Initiative (ECI). The EU’s General Court overturned, for the first time, a European Commission decision. This decision had blocked the registration of a proposed ECI known as ‘Minority SafePack.’ Just recently, the General Court made another impactful judgment concerning the ECI. This ruling involved the ‘Stop TTIP’ case, which centered around the interpretation of the ECI’s legal requirements for admissibility. Unlike the ‘Minority SafePack’ ruling, which focused on procedural grounds, this judgment addressed substantive concerns, claiming that the European Commission violated Article 11(4) TEU and Articles 2(1) and 4(2)(b) of the ECI Regulation.

The ‘Stop TTIP’ case highlighted a point of contention between the European Commission and ECI organizers, specifically the acceptable scope of an ECI and the Commission’s restrictive definition of acceptable subjects for registration. These limitations were outlined in the Commission’s response to the proposed ‘Stop TTIP’ Initiative, submitted in July 2014. The Initiative aimed to halt negotiations on the Transatlantic Trade and Investment Partnership agreement (TTIP) between the EU and the US and to block the finalization of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada.

More precisely, the ‘Stop TTIP’ Initiative requested that the Commission urge the Council to revoke its decision, made under Article 218(2) TFEU, to authorize the commencement of TTIP negotiations. Additionally, it requested the Commission to present a proposal to the Council for a decision to prevent the conclusion of CETA. In September 2014, the Commission informed the organizers that both requests were denied based on Article 4(2)(b) in conjunction with Article 2(1) of the ECI Regulation. The justification given was that the requests fell outside the Commission’s purview to submit a proposal for a legal act within the Union aimed at implementing the Treaties.

The Commission’s response revealed two specific limitations placed upon the scope of the ECI. Firstly, it stated that an ECI cannot request the Commission to adopt preparatory acts. The Commission argued that its proposals to the Council under Article 218 TFEU, to authorize the initiation of negotiations for international agreements, were not proposals for legal acts. They maintained that Council Decisions authorizing the initiation of such negotiations are preparatory and only have legal implications between the EU, its Member States, and the EU institutions themselves, lacking legal effect against third parties. Therefore, the Commission argued that ‘Stop TTIP’ did not propose any legal acts for implementing the Treaties and was ineligible for registration. Secondly, the Commission declared that an ECI cannot request the Commission to propose a decision to abstain from adopting a legal act. This encompasses proposals such as a decision not to conclude CETA or to refrain from proposing a legal act altogether. Such a proposal, they argued, ‘would not deploy any autonomous legal effect beyond the fact of the legal act at issue not being adopted.’ This ‘negative’ nature of the ‘Stop TTIP’ proposals, coupled with the argument that they did not propose ‘legal acts’ as required by Article 11(4) and Article 2(1) of the ECI Regulation, resulted in the Commission’s refusal to register it. Importantly, these limitations imposed by the Commission are not explicitly stated in the ECI Regulation but stem from the Commission’s interpretation of the ECI’s legal framework.

Following the Commission’s rejection, the ‘Stop TTIP’ organizers took a two-pronged approach. They initiated legal action against the Commission’s decision with the EU General Court, the first instance part of the Court of Justice of the European Union (CJEU), challenging the refusal to register their Initiative. Concurrently, they launched what they termed ‘a self-organized ECI’ – a signature-gathering campaign conducted outside the formal framework of the ECI. This campaign successfully gathered over 3 million signatures, which were presented to the Commission in October 2015.

As illustrated above, the importance of the General Court’s judgment in the ‘Stop TTIP’ case goes beyond the question of whether the Initiative itself was unjustly refused registration. It delves into the crucial matter of whether the Commission was justified in restricting the scope of the ECI and limiting its ability to propose EU action. This short commentary will analyze the key aspects of this landmark judgment, which has substantial ramifications for both ECI organizers and the functionality of the ECI as a tool for citizen participation.

The arguments of the parties

The applicants presented two primary arguments. First, they claimed that the Commission violated Article 11(4) TEU and Article 4(2)(b) of the ECI Regulation. Second, they asserted a breach of the principle of equal treatment as per Article 20 of the EU Charter of Fundamental Rights, alleging discrimination based on the prior registration of the ‘Swissout’ Initiative, which shared similar objectives with ‘Stop TTIP’. The judgment primarily addressed the first argument, leaving the second one unexamined.

In support of their primary claim, the applicants put forth three key arguments. They first argued that the Council’s Decisions, made under Article 218(5) TFEU, to authorize the conclusion of an international agreement, are not preparatory acts. Regarding the Initiative’s proposals concerning CETA negotiations, already underway at the time of the registration request, a Council Decision instructing the Commission not to conclude CETA wouldn’t be preparatory but would have legally binding effects. Regarding the Initiative’s proposals for a Commission proposal to the Council to retract the decision authorizing TTIP negotiations, such a decision, by ending the negotiations, would be final and legally binding. They contended that, regardless, an ECI shouldn’t be limited to solely proposing legal acts with definitive and legally binding consequences for third parties. Neither the background of the ECI Regulation nor its overall framework, they argued, justifies such a narrow interpretation of “legal acts”.

Second, the applicants challenged the Commission’s stance that an ECI cannot pertain to acts with legal implications solely between the involved institutions. They maintained that, for the purpose of the ECI, the term “legal act” should be interpreted broadly, considering Articles 288 – 292 TFEU, encompassing Commission Decisions beyond the typical legislative process.

Third, the applicants highlighted the potential disruptive effect of the Initiative on the TTIP and CETA negotiations. They asserted that this “destructive effect” cannot be a basis for refusal under the premise that the Initiative’s proposals did not aim to implement the Treaties. They argued that citizens’ right to participate in the EU’s democratic processes inherently includes the right to seek modification, reform, ratification, or even partial or complete annulment of EU law.

The Commission’s primary counterarguments echoed the position outlined in their 2014 response letter to the organizers. They reiterated that the Council Decision to approve the start of negotiations for an international agreement is solely preparatory, producing legal effects only between the two EU institutions involved. They argued that a “systematic and teleological interpretation” of Articles 2(1) and 4(2)(b) of the ECI Regulation leads to the conclusion that a preparatory act falls outside the definition of a “legal act” in the context of ECI registration. This argument was further supported by their claim that democratic participation within the EU only applies to matters that could potentially fall within citizens’ legal sphere. The Commission argued that the Council and the Commission themselves possess sufficient democratic legitimacy to handle acts influencing the relationship between EU institutions.

Furthermore, the Commission reiterated their stance that an ECI cannot demand the Commission to refrain from proposing a specific legal act or to propose a decision against adopting a legal act. They cited Article 10(1)(c) of the ECI Regulation, pertaining to the final stage of the ECI process, where the Commission is obligated to issue a Communication detailing their intended actions (if any). The Commission argued that this implies that only ECIs seeking the adoption or repeal of a legal act can be registered. Otherwise, a declaration by the Commission stating their intention not to propose the adoption of a legal act, in response to an ECI, would unduly limit the Commission’s right of legislative initiative. The Commission argued that an ECI demanding the Council to repeal a decision to open negotiations, or not to conclude an agreement, would constitute “unacceptable interference” in an ongoing legislative procedure.

The judgment of the General Court

The General Court began by referencing the legal framework of the ECI, citing Article 11(4) TEU and specific articles within the ECI Regulation. These included Article 2(1) (defining the ECI), Article 4(2)(b) (addressing the legal admissibility test), and Article 10(1)(c) (outlining the Commission’s obligation to respond to a successfully submitted ECI). The court clarified that the ECI organizers were not requesting the Commission to abstain from submitting a proposal to the Council for the signing and conclusion of TTIP and CETA. Instead, they were requesting the submission of two distinct proposals: (a) a proposal to revoke the authorization for initiating TTIP negotiations and (b) a proposal to withhold authorization for the signing of TTIP and CETA, thus preventing their conclusion. The court emphasized that the case was not challenging the Commission’s authority to negotiate TTIP and CETA but rather the reasons provided for rejecting the proposal.

The court determined that the Commission has the power to act as requested by the applicants, by submitting the two proposals to the Council. It then addressed whether these actions could be excluded from an ECI on the grounds of being preparatory acts or unnecessary for implementing the Treaty, as the Commission had argued.

Concerning the definition of a “legal act” within the context of an ECI, the court sided with the applicants. They argued that the term, as used in Article 11(4) TEU and Articles 2(1) and 4(2)(b) of the ECI Regulation, cannot be solely limited to final EU acts with binding legal effects on third parties. The court found no justification in the law’s text or the provisions’ overall intent to support the Commission’s position. This held particularly true, as the actions in question, pertaining to the conclusion of an international agreement, align with the definition of a “Decision” as per Article 288(4) TFEU and clarified in a prior case. Moreover, the court stressed that the democratic principle upon which the EU is founded necessitates a broad interpretation of “legal act”.

Furthermore, the court dismissed the Commission’s argument against the Initiative based on the assertion that the suggested actions did not aim to implement the Treaties and were therefore disruptive to the law-making process. The court stated that neither Article 11(4) TEU nor Article 2(1) of the ECI Regulation suggest that citizens are barred from using an ECI to prevent the adoption of a legal act. The court argued that the conclusion of TTIP and CETA would inherently modify the existing EU legal order. Therefore, advocating to halt these agreements signifies that the ‘Stop TTIP’ organizers were indeed acting to implement the current Treaties. The court highlighted that Initiatives opposing the signing and conclusion of an international agreement do have legal ramifications because they have the potential to prevent modifications to EU law that the agreement intends to bring about.

Lastly, although the court did not directly address the applicants’ second claim regarding the unequal treatment of their Initiative compared to the ‘Swissout’ Initiative, it acknowledged the contradictory situation arising from the handling of the two. This paradox stemmed from the Commission’s interpretation, suggesting an ECI could propose terminating an existing international agreement, but not the negotiations leading to such an agreement. The court adopted a citizen-centric approach, asserting that citizens should not be required to wait for an agreement’s conclusion before being able to challenge it through an ECI. In essence, the court placed proposals seeking the termination of negotiations on equal footing with those advocating for their initiation, interpreting the ECI’s scope to encompass both.

Commentary

The ‘Stop TTIP’ case provided a valuable opportunity for the CJEU to intervene and clarify the correct interpretation of Article 4(2)(b) of the ECI Regulation concerning proposals related to international agreements. The General Court seemingly seized this opportunity. The judgment broadens the scope of the ECI, overruling the Commission’s interpretation of legal admissibility in this specific context. This ruling represents a positive advancement not only for the ECI organizers involved in this particular case but also for those considering launching an ECI campaign on topics related to international agreements. Moreover, it’s a win for stakeholders who have been advocating for more flexibility in the legal admissibility test.

The court’s significant reliance on the ECI’s nature as a mechanism for democratic participation is particularly noteworthy. They underscore the ECI’s function in fostering democratic dialogue and empowering citizens to directly address the Commission and request action. For instance, the court implicitly rejected the Commission’s initial argument that a potential violation of Article 11(4) TEU was irrelevant. The Commission had argued that the only pertinent legal text was the ECI Regulation itself, based on Article 24 TFEU, which outlines the details of the legal admissibility test. The court’s interpretation of “legal acts” for ECI registration, as well as their interpretation of “implementing the Treaties”, hinges on a combined reading of both Article 11(4) TEU and the relevant ECI Regulation provisions. The court even considered the ECI in light of the fundamental democratic principle enshrined in the Treaty’s Preamble and the EU Charter of Fundamental Rights, aiming to expand the right to initiate an ECI beyond the Commission’s narrower interpretation.

Moreover, the court took a more restrictive view than the Commission regarding what constitutes an “unacceptable interference with the adoption of a legal act” in the context of an ECI. They argued that the very essence of citizen participation in the EU’s democratic processes, which the ECI embodies, includes the right to request modification, partial or complete repeal of legal acts. They stressed that genuine citizen participation should enable citizens to potentially hinder or interfere with the enactment of a legal act. Considering that the Commission has sole discretion in determining the follow-up to a successful ECI after its public hearing, as per Article 10 of the ECI Regulation, the court argued that registering ‘Stop TTIP’ wouldn’t inherently constitute an unacceptable interference with the legislative process or violate the principle of institutional balance. Therefore, it appears the court factored in the Commission’s overall discretion at the end of the ECI process when interpreting the legal admissibility test, which occurs at the beginning.

Given that this marks only the second instance where the General Court has overturned a Commission decision to reject a proposed ECI, the path forward remains somewhat unclear. Following the ‘Minority SafePack’ case, the Commission proceeded to register the portions of the ECI it deemed admissible. Additionally, they issued a Decision further elaborating on their justification for partially registering the ECI. The situation in this case is more complex. As previously mentioned, the ‘Stop TTIP’ organizers went ahead with their signature collection despite the initial rejection of their ECI, amassing an impressive 3.3 million signatures in just one year – surpassing all formally registered ECIs. Subsequently, the organizers declared on their website that they expect to be treated like a regular ECI, anticipating an official response from the Commission and a public hearing at the European Parliament. This situation presents the Commission with some interesting dilemmas. Will they opt to register the ECI or escalate the case further by appealing to the European Court of Justice? If registered, will the Commission recognize the collected signatures or mandate that the organizers start anew? In their plans to propose revisions to the ECI in the near future, will the Commission attempt to overturn this new judgment or embrace and fully incorporate it?

The element of time adds another layer of complexity to the Commission’s upcoming response. Between 2014 and 2017, significant developments unfolded regarding both TTIP and CETA. These include numerous negotiating rounds for TTIP up until October 2016, a Commission proposal to the Council for CETA’s signature and conclusion in July 2016, and the European Parliament’s vote in favor of CETA after it was nearly derailed by Wallonia. All these events directly contradict the ‘Stop TTIP’ organizers’ requests in their proposal, highlighting the crucial role of timing in an ECI’s overall success.

Finally, it’s worth pondering the potential implications of the General Court’s judgment on future ECIs concerning Brexit. The judgment seems to open the door to ECI proposals challenging a potential future agreement on the UK-EU relationship, assuming such an agreement will be negotiated under Article 207 and 218 TFEU. While such a scenario may be far off, or may not materialize at all, it raises intriguing possibilities. It suggests that citizens could have a new avenue for participation and voice within the Brexit process. For now, it remains to be seen how the Commission will address ‘Stop TTIP’ and how the organizers will continue their campaign.

Photo credit: Stop TTIP

Barnard & Peers: chapter 24

[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