Anastasia Karatzia, Assistant Professor in EU law, Erasmus School of Law
Introduction
On February 3rd, the General Court (GC) overturned a European Commission decision for the first time, determining that the Commission failed to provide sufficient justification when it denied registration to a proposed European Citizens’ Initiative (ECI). This concise judgment in the Minority SafePack case concerns procedural matters within the relatively new ECI, which was established in 2012. The judgment offers valuable insight to those interested in the ECI and, more broadly, in opportunities for citizens to participate in EU lawmaking.
The ECI is a tool that allows EU citizens to request the European Commission to consider an idea for potential legislation. It is governed by Articles 11(4) TEU, 24 TFEU, and Regulation 211/2011 (the ECI Regulation), which details the procedural steps. ECI organizers have one year to gather one million signatures in support of their initiative for the Commission’s review and potential response, at the Commission’s discretion.
Submitting an ECI proposal to the Commission for registration is the first step. The Commission can refuse registration–meaning organizers cannot collect signatures–if the initiative “falls manifestly outside the competences of the Commission to propose legislation” (Article 4(2)(b) of the ECI Regulation). If registration is refused, the Commission must explain its reasoning to the organizers under Article 4(3) of the ECI Regulation. The Commission sends a letter to the organizers and publishes it on the ECI website. Known as the “legal admissibility test,” this step has been the subject of much academic analysis and discussion since the ECI’s inception, with stakeholders frequently arguing that it hinders the ECI’s effectiveness.
In July 2013, the Federal Union of European Nationalities (FUEN) submitted their proposal for an ECI called ‘Minority SafePack – One million signatures for diversity in Europe’, which they considered “the most important initiative of the minorities in Europe in recent decades.” ‘Minority SafePack’ proposed EU action in several policy areas to improve the protection of national and linguistic minorities and to bolster cultural and linguistic diversity within the EU. The Commission decided to deny the ECI registration in September 2013, citing Article 4(2)(b) of the ECI Regulation. The FUEN challenged the legality of the Commission’s decision before the GC under Article 263 TFEU.
Legal & Factual Background
Per Article 4(1) of the ECI Regulation, organizers must submit their ECIs online through the Commission register and provide the information outlined in Annex II of the ECI Regulation. Required information includes: the proposed ECI’s title, subject matter, and objectives; relevant Treaty provisions; personal details of the organizers; and funding sources at the time of registration. The description of the ECI’s subject matter and objectives is limited to 200 characters (approximately 190 words) and 500 characters (approximately 430 words), respectively.
It is important to note that Annex II allows organizers to submit an annex with their registration form containing additional details about their ECI’s subject, goals, and background; organizers can also submit a draft version. The ‘Minority SafePack’ organizers chose to provide a document with further information regarding their proposed ECI. This document outlined eleven proposed legal actions (including a Regulation and a Council Directive) across six areas: language, education, and culture; regional policy; participation; equality; media; and support for minority communities. The document also included a ‘saving clause’, requesting the Commission to review each of the eleven proposals individually and to register parts of the ECI if some proposals were deemed inadmissible.
The applicants’ primary argument before the GC concerned the Commission’s alleged failure to fulfill the essential procedural requirement of providing reasons. The applicants contested the Commission’s lack of explanation regarding which of the eleven proposed acts did not comply with Article 4(2)(b) of the ECI Regulation and why. As such, they argued that the Commission violated Article 296(2) TFEU and Article 4(3) of the ECI Regulation. They also argued that the Commission did not explain its position that the ECI Regulation does not allow for the registration of parts of an ECI. This stance is not explicitly stated in the ECI Regulation, nor is it explained in the Commission’s letter. Furthermore, the applicants argued that none of the areas for which they requested the Commission to submit a proposal fell outside the Commission’s power to propose legal acts.
The Commission countered by stating that its decision provided sufficient reasoning for refusing registration based on the ECI’s subject matter as presented in the registration form. Any supplementary details provided by the organizers (for example, the document with specific ECI proposals) were merely for informational purposes and did not change the initiative’s subject matter. The Commission emphasized its position that it was not obligated to elaborate on its view that Article 4(2)(b) of the ECI Regulation does not permit partial registration of an ECI.
The General Court’s judgment
The GC, citing its judgment in the initial ECI case–Anagnostakis v Commission (involving Greek debt relief)– began by reiterating the two-part objective behind the obligation of EU institutions under Article 296(2) TFEU to provide reasoned decisions. This obligation aims to ensure those involved have adequate information to determine a decision’s validity and to enable judicial review of the reasoning behind the relevant decision by EU Courts. Article 4(3) of the ECI Regulation articulates this obligation within the ECI context.
The GC then explained that the requirement to give reasons must be assessed in light of the measure’s nature, content, and the justifications provided by the EU Institution. While the reasoning does not need to cover all the details of the decision, the extent of the reasoning requirement must be assessed on a case-by-case basis. In this case, the GC explained the context as follows: Article 24(1) TFEU grants citizens the right to submit an ECI (see Anagnostakis para 26), and a decision refusing an ECI’s registration could impact this right’s effectiveness. Therefore, the Commission must clearly outline the reasons for refusing registration to allow citizens whose ECIs have been rejected to understand the reasons for the refusal and evaluate it accordingly.
Based on this, the GC assessed the reasons given by the Commission for its refusal to register ‘Minority SafePack’. The Commission’s decision outlined three brief reasons for the refusal: First, although Article 2 TEU lists respect for the rights of persons belonging to minorities as one of the EU’s values, there is no legal foundation for adopting legal acts to this end. Second, Article 3(3) TEU and Article 21(1) of the Charter cannot serve as a legal basis for EU action. It’s worth noting here that the supplementary document submitted by the organizers suggested twenty legal bases for the proposed actions. Third, while some acts requested in the ECI Annex could fall within the Commission’s purview, the ECI Regulation does not provide for registering parts of a proposed initiative.
The GC determined that the Commission’s reasoning was clearly insufficient, even though the Commission stated the basis for refusal (Article 4(2)(b) of the ECI Regulation). The Commission did not specify which of the eleven proposals were outside its powers, nor did it provide any reasoning to support its assessment. Consequently, the organizers could not identify the proposals that did not align with Article 4(2)(b) or understand the reasoning behind this conclusion. This lack of clarity also prevented them from resubmitting a revised ECI proposal because they did not have adequate information on the types of acts the Commission would accept. The insufficient reasoning also hindered the GC from evaluating the legality of the Commission’s response. More broadly, this lack of comprehensive reasoning discourages citizen participation in the democratic process and contradicts the ECI’s goal of making the EU more accessible to citizens.
Additionally, the GC confirmed its ruling in a previous ECI case– Izsák and Dabis v Commission (currently under appeal)–stating that the Commission should consider information included in the organizers’ annex to be as essential as the required information stipulated in Annex II of the ECI Regulation. According to the GC, Annex II of the ECI Regulation gives organizers the right to submit additional information to the Commission. Because Annex II has the same binding power as the ECI Regulation, the Commission, “in accordance with the principle of sound administration," must consider any additional information in the same way as it considers the required information listed in Annex II. Consequently, the Commission’s response must include reasons for an ECI refusal, considering all information provided by ECI organizers.
Comment
At first glance, the judgment is positive for future ECI organizers. It acknowledges the work required to develop a legally sound ECI proposal, as well as the limitations of doing so solely through the information required by Annex II. If the GC had agreed with the Commission’s position, organizers could have found themselves devoting significant time and effort to drafting a proposal with specific legal bases, only to have the Commission state it was not obligated to justify its stance on the additional information and draft legal acts provided by the organizers. The Commission itself acknowledges that it considers all possible legal bases when evaluating whether a proposal meets registration requirements; therefore, expanding on its reasoning in light of the organizers’ specific proposals should not be overly burdensome.
After closer examination, it appears that the GC’s finding in this and previous ECI cases is not necessarily always beneficial for ECI organizers. This becomes apparent when examining the previous Iszak and Dabis case, which involved the Commission’s refusal to register a proposed ECI titled ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures.’ In that case, the applicants made the same argument as the Commission in the Minority SafePack case: that the Commission should not give equal weight to additional information compared to mandatory information. However, the GC disagreed, stating 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.’ The GC posits that this finding is not contingent on whether the additional information benefits the applicant or not.
Consequently, it appears the Court’s judgment could have two implications for potential ECI organizers. First, ECI organizers might be able to use it to challenge the Commission’s reasoning if the Commission has not adequately addressed the additional information submitted during registration. Conversely, the Court’s finding might not be helpful for ECI organizers whose initiatives might have been accepted based solely on the mandatory information but were rejected because of the additional information provided.
Finally, it is unfortunate that the GC did not clarify one procedural aspect of the ECI. As noted, the Commission stated in its decision that it cannot register an ECI with only some objectives meeting the criteria outlined in Article 4(2)(b). The GC did not address whether this interpretation of the ECI Regulation, which is not explicitly stated in the ECI legal framework, is legally sound. The GC maintained that it was not necessary to rule on this question, focusing instead on its finding that the Commission failed to fulfill its obligation to provide sufficient reasoning. This might imply that the Commission needs to justify its interpretation of Article 4(2)(b) of the ECI Regulation, but it does not mean the Commission’s interpretation of Article 4(2)(b) is incorrect. For instance, if the Commission explains its rationale for its interpretation of Article 4(2)(b) regarding partial registration, this does not automatically mean the interpretation is legally sound under Treaty Articles 11(4) TEU or 24 TFEU, or the ECI Regulation. This is not to argue whether the Commission’s current interpretation of Article 4(2)(b) is correct. Instead, it highlights that clarification on this point from the GC would have been helpful.
The ECI is a relatively recent instrument, so each clarification of its legal background contributes to its development. The Minority SafePack judgment is a helpful addition to this body of law. It remains to be seen how the Commission will respond.
Photo credit: Federal Union of European Nationalities
[[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.