RSIEAblog

by Jasmin Hiry
PhD candidate, University of Luxembourg

 

 

One crucial innovation introduced by the Treaty of Lisbon is the European Citizens’ Initiative (ECI). It is the first tool of participatory democracy at supranational level, and raised great hopes to make the European Union more accessible. However, after some years of operation major flaws crystalized. One such flaw has recently been the subject of a judgment rendered by the Court of Justice in early March 2019. In C-420/16P Izsák and Dabis, the Court was given another chance to clarify the registration stage of the ECI and the strong position of the European Commission therein. To the relief of many, and particularly the organizers of ECIs, the Court ruled in favour of facilitating the registration of citizens’ initiatives, thereby making the tool in general more accessible. However, in light of the Court’s existing jurisprudence, the recent revision of the Regulation governing the procedure of the ECI, and the changing attitude of the Commission towards registering the latter, further questions arise. Firstly, the actual potential of the Court’s judgment in light of these developments is debatable, and secondly it is worth considering in which direction the ECI in general, as a tool of participatory democracy, is developing – into the direction of a tool to foster debate or into that of a real right of initiative for citizens. It is in this context, that the following comment aims to analyse the Court’s decision.

Background

According to article 11(4) TEU ‘not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting 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.’ In February 2011, the European Parliament and the Council adopted Regulation No 211/2011 on the citizens’ initiative specifying the procedure to process such an initiative. According to the Regulation, organizers will have to provide a minimum of information on the subject matter and the objectives of their proposed ECI for it to be registered by the Commission (article 4 of Regulation No 211/2011). Only after registration may the organizers start to collect support for the initiative. Registration is subject to the fulfilment of four conditions as listed in article 4(2), to be assessed by the Commission. The organizing committee must be adequately formed (article 4(2)(a)), the proposed citizens’ initiative must be neither manifestly abusive, frivolous or vexatious (article 4(2)(c)), nor manifestly contrary to the values of the Union as set out in Article 2 TEU (article 4(2)(d)); and the initiative must not manifestly fall outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties (article 4(2)(b)). Especially the last condition led to increased controversy. As the Union is based on the principle of conferral, the Union can only act where Member States explicitly conferred that power upon it. Hence, where no competence to act was conferred upon the Union, it is generally prevented from taking action in the given field, irrespective of whether the intention to act is petitioned by citizens, or originates from the Commission itself. If the Union was given competence, the nature of the latter – exclusive, shared or supportive – in combination with a concrete legal basis determines what the EU may do in the certain field. In the area of economic, social and territorial cohesion, for instance, the Union shares the competence to act with the Member States (article 4(2)(c) TFEU), and may therefore only act in accordance with the principles of subsidiarity and proportionality (article 5(3) & (4) TEU). What exactly the Union may do in this area will largely be determined by articles 174 – 178 TFEU, which fall under Title XVIII on economic, social and territorial cohesion and could thereby serve as legal basis for an act, the Union wishes to adopt in this field.

Determining the correct legal basis is hence a precondition to any Union act. Due to Commission’s (almost) exclusive right of initiative, this assessment is largely performed by this institution when making use of its right. The question is however, whether that also holds true when an ECI invites the Commission to submit a proposal. Since based on article 4(2)(b) of Regulation No 211/2011 the Commission may refuse to register an ECI, where it finds that the latter falls manifestly outside the framework of its powers to submit a proposal for the implementation of the treaties, two questions arise. Firstly, is the determination of whether something falls manifestly outside its power a determination of the concrete, and correct, legal basis, and secondly, whether this is a determination to be carried out by the organizers of the ECI, or by the Commission.

Especially in the beginning, the Commission seemed to employ an interpretation, whereby the organizers would need to prove an appropriate legal basis, and in the absence of adequate proof, the Commission would refuse to register the initiative. It is one of those refusals, which the European Court of Justice has recently re-evaluated on appeal.

Facts

In June 2013, Mr Izsák and Mr Dabis, together with five other organizers, submitted a proposed European Citizen’s Initiative to the European Commission. ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’ (hereafter Cohesion Policy Initiative) is an ECI, drafted and coordinated by the Szekler National Council, which aims to invite the Commission to initiate the alteration of the cohesion policy of the EU as to pay ‘special attention to regions with national, ethnic, cultural, religious or linguistic characteristics that are different from those of the surrounding regions.’ The main objective of this ECI is to give such regions access to EU cohesion policy funds, resources and programmes in order to preserve their characteristics and promote their proper economic development. In an annex attached to the application, the organizer propose concrete measures, which should be included in the act to be proposed by the Commission. As required by Annex II of Regulation No 211/2011, they further indicate several ‘provisions of the Treaties considered relevant […] for the proposed action’. On 25 July 2013, the Commission informed the organizers of its decision not to register the ECI as it ‘falls manifestly outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.’ In support of its decision, the Commission listed the measures suggested by the applicants in the annex – (1) ensuring that Member States fulfil their international commitments regarding national minorities; (2) defining the concept of “national” regions as to cover minority regions; and (3) identifying these “national” regions name-by-name – and found that these measures cannot be adopted based on the treaties. While for the first measure, the Commission was quite brief in mentioning that no legal basis for the adoption of such an act can be found in the treaties, for the remaining two suggestions it was more elaborative. It found that ‘any measure adopted under the cohesion policy legal bases of Articles 177 and 178 TFEU are limited to achieving the objective of strengthening economic, social and territorial cohesion as referred to in Article 174 TFEU.’ National minority regions cannot be considered to fall within any of the regions covered by Article 174 TFEU. Therefore, none of these provisions, or any other provision in either the TEU or the TFEU, could serve as a legal bases to adopt the proposed measures.

In September 2013, Mr Izsák and Mr Dabis brought an action for the annulment of the Commission decision asking the General Court to find an infringement of article 4(2)(b) of Regulation No 211/2011 based on the ground that the proposal does not fall manifestly outside the Commission’s power.

The General Court

In its ruling of 10 May 2016, the General Court dismissed the action in its entirety, rejecting all claims raised by Mr Izsák and Mr Dabis. In their central claim, the applicants argued that the Commission erred in its interpretation of article 4(2)(c) TFEU and 174 TFEU as well as Article 3(5) of Regulation No 1059/2003 and thereby wrongfully considered the proposal to fall outside the Commission’s power. The Court rejected this argument. It found that ‘the proposed act was to lead to a redefinition of the concept of ‘region’, within the meaning of Articles 174 TFEU to 178 TFEU, by conferring a genuine status to national minority regions, without regard for the political, administrative and institutional status quo existing in the Member States in question’ (§74). Such a redefinition would necessarily infringe Article 4(2) TEU, which requires the Union ‘within the framework of policy cohesion, [to] respect the political, administrative and institutional status quo existing in the Member States’ (§76). Furthermore, ‘even supposing that national minority regions may correspond to administrative units existing in the Member States […], the preservation of the specific ethnic, cultural, religious or linguistic characteristics of those regions is not an aim which could justify the adoption of a legal act of the Union on the basis of Articles 174, 176 [to 178]’ (§77). The Court pointed out that the applicants had not provided sufficient evidence as to firstly, how the Union’s cohesion policy would endanger the specific characteristics of national minorities (§81), and secondly how these characteristics ‘could be regarded as a serious and permanent demographic handicap within the meaning of the third paragraph of Article 174 TFEU’ (§85). Therefore, even those allegations, considered by the Court on a hypothetical basis, could not be uphold, particularly ‘in the absence of any conclusive evidence put by the applicants’ (§89). The General Court also confirmed the Commission’s finding of a general lack of adequate legal basis for the adoption of the proposed measures (§99, 113) and thereby confirmed that the ECI fell manifestly outside the framework of the Commission’s power.

The Court of Justice

Mr Izsák and Mr Dabis appealed against this judgment arguing amongst others that the General Court had misinterpreted article 4(2)(b) of Regulation No 211/2011 as well as article 174 TFEU.

In reconsidering the General Court’s judgment, the Court of Justice finds that the former treated the question of whether an ECI falls manifestly outside the framework of the Commission’s powers as ‘a matter of assessing the facts and evidence, laying the burden of proof in this respect on the appellants’ (§57). However, according to the Court, this question is ‘not a question of fact or of the assessment of evidence subject as such to the rules on the burden of proof, but essentially a question of the interpretation and application of the relevant provisions of the Treaties’ (§61). That is to say that at the stage of registration of an ECI, the Commission ‘must confine itself to examining, […], whether from an objective point of view such measures envisaged in the abstract could be adopted on the basis of the Treaties’ (§62). Requiring proof as to the factual elements that would indeed justify the use of a specific legal basis for the intended act, would not only go beyond what is required by article 4(2)(b) but would furthermore upset the very purpose of the ECI – to make the Union more accessible (§64). Advocate General Mengozzi is even stronger on this point as he reminds the Court that the organizers of an ECI are ‘”non-specialists in EU law” and cannot master all the areas and policies of the Union’ (§59). Therefore putting the burden of proof upon them ‘would be particularly unreasonable and disproportionate’ (§60). Using slightly softer words, the Court nevertheless follows the Advocate General on this point, and thereby finds that the General Court misinterpreted the procedural aspects of article 4(2) of Regulation No 211/2011.

As for the substantive question of whether minority regions might be regarded as regions within the meaning of article 174 TFEU, the Court confirms the General Court’s analysis (§65-71). According to article 174 TFEU, ‘the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions. Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, crossborder and mountain regions.’ The Court finds that the list of regions ‘which suffer from severe and permanent natural or demographic handicaps’, within the meaning of that provision, is not exhaustive (§69). It accepts that more than the three types of regions under this heading – the northernmost regions with very low population density and island, crossborder and mountain regions – are covered by this notion. While minority regions could in theory also be covered, the Court confirms the General Court’s finding that while ‘differences, inter alia linguistic, between those regions and the surrounding regions may be at the source of certain increased transaction costs or of certain employment difficulties […], the specific characteristics of those regions may also bring them certain comparative advantages, such as a certain touristic attraction or multilingualism’ (§87 of the General Court’s judgment, as confirmed by §70 and 71 of the Court of Justice’s judgment). These characteristics can hence not ‘systematically constitute a handicap for the economic development of those regions’ [emphasis added] (§87). By confirming this part of the General Court’s judgment, the Court of Justice accepts that minority regions are excluded from the scope of regions, which suffer from severe and permanent handicaps.

Having found that the General Court erred in law in requiring the appellants to prove the conditions of article 4(2)(b) of Regulation No 211/2011, the Court sets aside the latter’s judgment and continues, in accordance with article 61 of the Statute of the CJEU, to annul the Commission’s decision to refuse the registration of the proposed ECI as a final judgment in the matter.

Comment

In general, this judgment rendered in Izsák and Dabis is to be welcomed. The Court clarified that the assessment of whether the conditions of article 4(2)(b) of Regulation No 211/2011 are met, is ‘not a question of fact or of the assessment of evidence subject as such to the rules on the burden of proof’. The organizers are hence not obliged to carry out a full legal analysis of the potential legal basis for the proposed measures and provide evidence thereto. This will be the task of the Commission if it wishes to initiate a respective proposal after the organizers collected the required support. At the registration stage, the Commission shall merely examine ‘whether from an objective point of view such measures envisaged in the abstract could be adopted on the basis of the Treaties’ [emphasis added]. The judgment should therefore considerably facilitate the registration stage of the ECI and thereby make the tool itself more ‘user-friendly’ for organizers.

For the concrete case of the Cohesion Policy Initiative, the judgment left room for different responses from the Commission, as the Court clarified that on the substance article 174 TFEU could not serve as a legal basis for all measures envisaged by the initiative. Despite this concern, subsequent to the Court’s judgment, the Commission decided to register the ECI on 30 April 2019, allowing for the collection of support as of 7 May 2019. Notably, the Commission did not further elaborate on article 174 TFEU, but confined itself to note that ‘[s]tatements of support for this proposed citizens’ initiative may be collected, based on the understanding that it aims at proposals from the Commission for legal acts setting out the tasks, priority objectives and the organisation of the Structural Funds and provided that the actions to be financed lead to the strengthening of the economic, social and territorial cohesion of the Union’. Only such proposals would not manifestly fall outside the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties. The Commission thereby disregarded the specific measures requested and limited the scope of the ECI to what lies within the framework of its powers. Hence, while the ECI might not be able to achieve precisely what was initially aimed for, it is at least registered and the organizers may start to collect support and thereby raise further awareness for their cause.

To determine the more far-reaching implications of the judgment, the latter has to be considered in the broader context of the developments of the ECI, in which it has been rendered. Three remarks deserve to be made in this respect.

Firstly, Izsák and Dabis is part of an ever-increasing jurisprudence on the ECI, in which the Court seems to steadily refine its previous rulings. On the one hand, the Court already found in 2016 that ‘the Commission must carry out an initial examination of the information available to it in order to determine whether the proposed ECI does not manifestly fall outside the framework of its powers, while provision is made for a more comprehensive examination to be carried out if the proposal is registered’ [emphasis added] (Costantini, §17). With Izsák and Dabis, the Court not only confirms this judgment, but further adds that the burden of proof as regards the concrete legal basis does not arise at this stage of initial examination, but only at the stage where the Commission would wish to initiate a proposal following a successful ECI.

On the other hand, Anagnostakis, to which both the Advocate General and the Court refer on multiple occasions, does not reconcile that easily with the present judgment. Following Anagnostakis, authors, such as Inglese, claimed that ‘it is not sufficient to cherry-picking some hypothetical legal bases vaguely related to an ECI’s goal but, on the contrary, an organising committee has to thoroughly carry out this assessment.’ Indeed this seems to be a widely shared interpretation of the case, which at first sight seems to contradict the Court’s finding in Izsák and Dabis. However, following Izsák and Dabis, this interpretation might be worth relativizing. In Anagnostakis, the Court was limited by the factual circumstances of the case, and in particular the vagueness that characterised this proposal. The organizers of ‘One million signatures for “a Europe of solidarity”’ had indeed left their concrete objectives ambiguous, arguably so ambiguous as to prevent the Commission, and subsequently the Court, from finding a potential legal basis as neither of them could grasp the precise intention of the organizers. In a situation where the predominant – and the Commission’s own – view, denies the ECI the possibility to request the Commission to initiate a treaty change, the Court was left to find that indeed the proposed ECI was outside the Commission’s competence. It thereby left the impression that organizers have to show that their proposal is within the framework of the Commission’s power to initiate a proposal. While it does no harm for the organizers to make a good case in this respect, the Court clarified in Izsák and Dabis that this is not the organizers’ but the Commission’s task, at the stage where it intends to submit a proposal. At the registration stage, it will refine itself to consider whether the initiative falls manifestly outside its powers. To ensure that the Commission is capable of carrying out this task, organizers need to phrase their initiative and its objectives in clear and unambiguous terms, but they do not need to carry out a thorough legal analysis as to the potential legal basis.

Secondly, the judgment has been rendered in an atmosphere in which the Commission started to follow a more lenient approach in registration. In the early days of the ECI, in which the initial decision not to register the Cohesion Policy Initiative was taken, the Commission employed a practice during which it would not register an ECI ‘without having concretely identified at least one legal basis which could support the aim of the initiative’. Following the first Commission’s Report on the application of Regulation (EU) No 211/2011 on the citizens’ initiative, the Commission adapted its attitude acknowledging the challenges ‘the registration procedure represented for organisers’. As of 2015, the Commission started to register an ECI partially, where only parts of the initiative fell within the Commission’s power. As a result, the number of registered ECIs following 2015 increased notably. It is in the very same context that the Commission decided to register the Cohesion Policy Initiative subsequent to the Court’s ruling. While the judgment itself clearly had an impact on the Commission’s decision, chances are that the Commission under today’s practice would have registered the initiative anyways.

In reaction to the emerging flaws of the ECI as a tool of participatory democracy, and its registration stage in particular, the Commission launched a proposal to revise Regulation No 211/2011 in September 2017. This is the third point that is to be raised as regards the context of the Court’s judgment. This Commission proposal has now been adopted. Regulation (EU) 2019/788 has not only revised Regulation No 211/2011, which the Court interprets in its judgment, but will also repeal the latter by 1 January 2020. As regards the registration stage, this new Regulation to some extent seems to mirror the practice the Commission was following in the previous years anyways. While the conditions for registration remain largely unchanged, the Regulation grants more flexibility in regard of ex-article 4(2)(b) of Regulation No 211/2011. Under the new Regulation, where the Commission considers that a proposed ECI or parts of it fall manifestly outside its powers, but all other requirements for registration are fulfilled, it shall inform the organizers appropriately and give them the chance to amend, maintain or withdraw their initiative subsequently (article 6(4) Regulation 2019/788). If the organizers decide to amend or to maintain their initial initiative, the Commission shall either register the initiative as a whole, where the conditions to do so are fulfilled, or partially, where the main objectives do not manifestly fall outside the framework of the Commission’s power. Only if that is not the case, the Commission shall refuse to register. Where it decides to partially register, it shall publish information on the precise scope of the registration, which is to be communicated by the organizers to potential supporters, to ensure that support is collected only in relation to the scope of registration. With these changes, the legislature showed a clear preference to register more ECIs and thereby make the tool more accessible in the registration stage.

Against the background of these developments – the Court’s jurisprudence, the actual Commission’s practice, as well as the legal revision of the main Regulation in the field – the judgment rendered by the Court in Izsák and Dabis appears far less ground-breaking. In a time, where the tendency already shifted towards facilitating the registration stage of the ECI, the Court’s judgment might not be as revolutionary as it would have been under the initial legal framework, but it remains a crucial component in making the ECI as a tool of participatory democracy more accessible.

While this broadened accessibility of the ECI should primarily be seen as a positive development, it is worth considering where this development will lead the ECI in general. Especially when looking at the outcome of a successful ECI, it cannot be ignored that the Commission retains broad discretion as to what action it intends to take following such a successful initiative, and whether to take any action at all (article 10 Regulation No 211/2011, which remains essentially unchanged under article 15(2) Regulation 2019/788). This undeniable discrepancy between the number of registered citizens’ initiatives, and the actions taken by the Commission subsequent to a successfully submitted ECI, raises the very fundamental question as to the nature of the tool. The new Regulation even formally calls the citizens’ initiative a ‘tool to foster debate’, which under the current state of the art seems to adequately describe its nature. But should this really be the final destination of the ECI? In the recent European Parliament’s election, multiple parties, such as the European Greens, and its affiliated national parties, propagated to equate a successful ECI to a real right of initiative, requiring the Commission to submit a proposal, and thereby eliminating the discretion currently retained by the Commission. While this will certainly be a cumbersome political discussion, it is one that should neither be avoided nor postponed for much longer. Eventually, the administrative burden related to the ECI, even though decreased under the new Regulation, will have to be evaluated as for its proportionality to the outcome of the ECI. Currently, the only guaranteed outcome of a successful citizen’s initiative is to foster debate. Everything beyond is at the discretion of the Commission. It would hence not be surprising if in the future potential organizers of ECIs might use different, less burdensome, routes to foster debate across the EU. This in turn would render the ECI, as a tool to encourage citizens’ participation and make the Union more accessible, superfluous.

To conclude, the Court’s judgment in Izsák and Dabis, seen in the context in which it has been rendered, constitutes a notable component in making the ECI as a tool of participatory democracy more accessible. In doing so, it however raises further questions as to the relationship between the broad(ened) accessibility of the tool and its (currently limited) final outcome. In the end, the judgement therefore seems to highlight a broader discussion as to the very nature of the ECI – a right of initiative or a tool to foster debate. Only time will tell whether the ECI will eventually turn into a real meaningful right of initiative under the newly elected European Parliament and a newly to-be-appointed Commission, or whether its potential has now been fully exhausted under the new Regulation.

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