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The Commission’s ‘Communication’ on a Successful European Citizens’ Initiative before the Court of Justice: ECJ (Grand Chamber) 19 December 2019, Case C-418/18 P, Puppinck and Others v European Commission

Published online by Cambridge University Press:  11 December 2020

Nikos Vogiatzis
Nikos Vogiatzis*
Affiliation:
Senior Lecturer in Law, University of Essex.
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Case Notes
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European Constitutional Law Review , Volume 16 , Issue 4 , December 2020 , pp. 691 - 712
Copyright
© The Author(s), 2020. Published by Cambridge University Press on behalf of European Constitutional Law Review

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Footnotes

I am grateful to the Editorial Board for comments and suggestions on an earlier version. The usual disclaimer applies. This note considers developments up to the end of August 2020.

References

1 Case C-418/18 P, Puppinck and Others v European Commission, EU:C:2019:1113 (hereinafter ‘Puppinck and Others’).

2 Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European citizens’ initiative, OJ L 130/55 (hereinafter ‘new ECI Regulation’). The acronym ‘ECI’ is avoided in the main text.

3 Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative, OJ L 65/1 (hereinafter ‘initial ECI Regulation’).

4 See, for example, A. Auer, ‘European Citizens’ Initiative: Article I-46.4 Draft Convention’, 1 EuConst (2005) p. 79.

5 Art. 2(1) of initial ECI Regulation.

6 European Commission, ‘Green Paper on a European Citizens’ Initiative’, COM/2009/0622 final.

7 This position is further explained in N. Vogiatzis, ‘Between Discretion and Control: Reflections on the Institutional Position of the Commission within the European Citizens’ Initiative Process’, 23 European Law Journal (2017) p. 250.

8 Such case law has been illuminating, particularly with regard to Art. 4(2)(b) of the initial ECI Regulation, stating that the Commission should not register the initiative if it ‘manifestly fall[s] 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’. See, among others, General Court 30 September 2015, Case T-450/12, Anagnostakis v Commission, EU:T:2015:739; General Court 10 May 2017, Case T-754/14, Efler v Commission, EU:T:2017:323; General Court 3 February 2017, Case T-646/13, Minority SafePack v Commission, EU:T:2017:59.

9 See, among others, A. Karatzia, ‘Revisiting the Registration of European Citizens’ Initiatives: The Evolution of the Legal Admissibility Test’, 20 Cambridge Yearbook of European Legal Studies (2018) p. 147; J. Organ, ‘Decommissioning Direct Democracy? A Critical Analysis of Commission Decision-Making on the Legal Admissibility of European Citizens Initiative Proposals’, 10 EuConst (2014) p. 422.

10 M. Sousa Ferro, ‘Popular Legislative Initiative in the EU: Alea Iacta Est’, 26 Yearbook of European Law (2007) p. 355 at p. 357 ff.

11 Emphasis added.

12 Auer, supra n. 4, p. 83.

13 See General Court 23 April 2018, Case T-561/14, One of Us v Commission, EU:T:2018:210, paras. 1-30 (the content of the Commission’s communication is also described therein).

14 Communication from the Commission on the European citizens’ initiative ‘One of Us’, COM (2014) 355 final.

15 Ibid., point 4.1.

16 They also sought the annulment of Art. 10(1)(c) of the initial ECI Regulation; however, that part of the action was found inadmissible by Order of the First Chamber of the General Court, as the time limit under Art. 263 TFEU had expired; that Order has not been published but is referenced in the judgment of the General Court (para. 40) and the Opinion of AG Bobek (para. 20).

17 One of Us, supra n. 13, para. 69.

18 Ibid (emphasis added).

19 Ibid., paras. 76-77.

20 Ibid., para. 77.

21 Ibid., para. 93.

22 See Art. 17(1) TEU.

23 One of Us, supra n. 13, paras. 103-118.

24 Ibid., paras. 126-132.

25 Ibid., in particular paras. 150-158.

26 Ibid., paras. 159-183.

27 Opinion of AG Bobek 29 July 2019, Case C-418/18 P, Puppinck and Others v Commission, EU:C:2019:640 (hereinafter ‘Opinion of AG Bobek’).

28 Ibid., paras. 33-42.

29 Ibid., para. 44.

30 Ibid., paras. 50-51.

31 Ibid., para. 52. Art. 11(1) TEU states that the ‘institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’; Art. 11(2) TEU that the ‘institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society’; and Art. 11(3) TEU that the ‘European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent’. As noted above, Art. 11(4) TEU refers to the ECI.

32 Ibid., paras. 55-56.

33 Ibid., paras. 87-107. The Advocate General opined that the reasoning of the General Court regarding the role of preambles in the interpretation of legal acts (here recital 20 and Art. 10(1)(c) of the initial ECI Regulation) was vitiated by an error of law, but that did not have an impact on the operative part of the judgment.

34 Ibid., para. 115.

35 Ibid., para. 116 (emphasis in the original).

36 Ibid., paras. 123-127.

37 Puppinck and Others, supra n. 1, para. 57.

38 Ibid., para. 61.

39 Ibid., paras. 64-65.

40 Ibid., paras. 79-80 (emphasis added).

41 Ibid., paras. 87-97.

42 Ibid., para. 133.

43 See further K. Lenaerts et al., EU Procedural Law (Oxford University Press 2015) p. 263 ff and case law cited therein.

44 One of Us, supra n. 13, para. 69.

45 Within the meaning of the case law of the Court: see ECJ 6 April 2000, Case C-443/97, Spain v Commission, EU:C:2000:190 (cited by the Commission).

46 General Court 20 May 2010, Case T-258/06, Germany v Commission, EU:T:2010:214 (also cited by the Commission).

47 See, among others, ECJ 26 January 2010, Case C-362/08 P, Internationaler Hilfsfonds eV v Commission, EU:C:2010:40, para. 51; ECJ 12 September 2006, Case C-131/03 P, Reynolds Tobacco and Others v Commission, EU:C:2006:541, para. 54.

48 See, for example, A. Türk, ‘Oversight of Administrative Rulemaking: Judicial Review’, 19 European Law Journal (2013) p. 126 at p. 136 ff.

49 Opinion of AG Léger of 17 February 2005, in Case C-41/03 P, Rica Foods v Commission, EU:C:2005:93, paras. 45-49; while adding (at para. 49) that, in his view, judicial review is even ‘less exhaustive’ when the discretion is of a political nature. For further discussion of the ‘manifest error of assessment’ in complex economic appraisals in EU competition enforcement see A. Kalintiri, ‘What’s in a Name? The Marginal Standard of Review of “Complex Economic Assessments” in EU Competition Enforcement’, 53 Common Market Law Review (2016) p. 1283.

50 P. Craig, EU Administrative Law (Oxford University Press 2018) p. 480.

51 Ibid, p. 481.

52 See Vogiatzis, supra n. 7, p. 267.

53 The stakes would be high anyway, since this was only the second successful ECI in the history of the instrument, and the first time the EU courts had the opportunity to assess the follow-up stage (the ‘communication’). But this remark also pertains to the criticism that the ECI has received, from various standpoints: the procedural and technical hurdles, the lack of clarity regarding various steps, the Commission’s admissibility decisions and of course the follow-up stage. In this context, it is unsurprising that the Commission has generally provided thorough justifications behind its actions and inactions under former Art. 10(1)(c) of the initial ECI Regulation.

54 See Art. 4(3) of the initial ECI Regulation: ‘Where it refuses to register a proposed citizens’ initiative, the Commission shall inform the organisers of the reasons for such refusal and of all possible judicial and extrajudicial remedies available to them’.

55 See, for example, M. Dougan, ‘What Are We to Make of the Citizens’ Initiative?’, 48 Common Market Law Review (2011) p. 1807 at p. 1838; see also Karatzia, supra n. 9.

56 See further Vogiatzis, supra n. 7, p. 263-265.

57 European Ombudsman Case 1609/2016/JAS (all European Ombudsman cases referred to in this case note can be accessed at ⟨www.ombudsman.europa.eu⟩, visited 11 November 2020).

58 See further N. Vogiatzis, The European Ombudsman and Good Administration in the European Union (Palgrave Macmillan 2018) p. 16-26, 33-52 and 93-96.

59 The Commission’s decision to withdraw a proposal in the context of the legislative process is, however, reviewable: see ECJ 14 April 2015, Case C-409/13, Council v Commission, EU:C:2015:217, para. 77: ‘a decision to withdraw a proposal … constitutes an act against which an action for annulment may be brought given that, by bringing the legislative procedure initiated by the submission of the Commission’s proposal to an end, such a decision prevents the Parliament and the Council from exercising, as they would have intended, their legislative functions under Articles 14(1) TEU and 16(1) TEU’.

60 ECJ 11 November 1981, Case 60/81, IBM v Commission, EU:C:1981:264, para. 20. For further discussion see A. Türk, Judicial Review in EU Law (Edward Elgar 2010) p. 17-23.

61 15 May 1997, Case T-175/96, Berthu v Commission, EU:T:1997:72, para. 21.

62 On this point see also A. Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting Lawmaking’, 54 Common Market Law Review (2017) p. 177.

63 ECJ 14 April 2015, Case C-409/13, Council v Commission, EU:C:2015:217, where the Court stated, inter alia, that: ‘The power of withdrawal [of the Commission] cannot, however, confer upon that institution a right of veto in the conduct of the legislative process, a right which would be contrary to the principles of conferral of powers and institutional balance’ (para. 75); ‘Consequently, if the Commission, after submitting a proposal under the ordinary legislative procedure, decides to withdraw that proposal, it must state to the Parliament and the Council the grounds for the withdrawal, which, in the event of challenge, have to be supported by cogent evidence or arguments’ (para. 76, emphasis added).

64 Opinion of AG Bobek, supra n. 27, para. 59 (emphasis in the original).

65 Ibid., para. 61.

66 Karatzia, supra n. 62, p. 192-201.

67 See further details at ⟨europa.eu/citizens-initiative/_en⟩, visited 11 November 2020.

68 This paragraph is based on critical remarks made in Vogiatzis, supra n. 7.

69 The extent of the Commission’s engagement with the proposals has varied, however. Perhaps noteworthy, in this respect, is the Commission’s very belated response to the ‘Right to water’ ECI which, according to the organisers, partly addressed their objectives, by proposing a revised Directive on the quality of water intended for human consumption; see further ⟨www.right2water.eu⟩, visited 11 November 2020.

70 P. Ponzano et al., ‘The Power of Initiative of the European Commission: A Progressive Erosion?’ (Notre Europe 2012).

71 In an important own-initiative inquiry, which is also discussed below, the European Ombudsman invited the Commission, among others, to ‘carry out preliminary consultations with the Council and Parliament with a view to determining whether there is political support for the ECI’; see European Ombudsman own-initiative inquiry OI/9/2013/TN, point 17.

72 On this point see L. Bouza García, ‘How Could the New Article 11 TEU Contribute to Reduce the EU’s Democratic Malaise?’, in M. Dougan et al. (eds.), Empowerment and Disempowerment of the European Citizen (Hart Publishing 2012) p. 253 at p. 274-275.

73 Opinion of AG Bobek, supra n. 27, paras. 84-85.

74 A. Follesdal and S. Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’, 44 Journal of Common Market Studies (2006) p. 533; see also V. Schmidt, ‘Democracy and Legitimacy in the European Union’, in E Jones et al. (eds.), The Oxford Handbook of the European Union (Oxford University Press 2012) p. 661.

75 C. Bickerton et al., ‘The New Intergovernmentalism: European Integration in the Post-Maastricht Era’, 53 Journal of Common Market Studies (2015) p. 703.

76 N. Scicluna and S. Auer, ‘From the Rule of Law to the Rule of Rules: Technocracy and the Crisis of EU Governance’, 42 West European Politics (2019) p. 1420; P. Kratochvíl and Z. Sychra, ‘The End of Democracy in the EU? The Eurozone Crisis and the EU’s Democratic Deficit’, 41 Journal of European Integration (2019) p. 169 – among others.

77 European Commission ‘White Paper on the Future of Europe’ (2017) p. 6.

78 A. Alemanno and J. Organ, ‘The Case for Citizen Participation in the European Union: A Theoretical Perspective on EU Participatory Democracy’, (2020) available at SSRN: ⟨https://ssrn.com/abstract=3627195⟩, visited 11 November 2020.

79 Efler v Commission, supra n. 8, para. 37.

80 Dougan, supra n. 55, p. 1842.

81 Opinion of AG Bobek, supra n. 27, para. 46.

82 Ibid., para. 47 (emphasis added).

83 For a comparative overview in Europe see, for example, M. Qvortrup, ‘The Legislative Initiative: A Comparative Analysis of the Domestic Experiences in EU Countries’, in Dougan et al., supra n. 72, p. 291.

84 Opinion of AG Bobek, supra n. 27, para. 69.

85 ECJ 6 October 2015, Case C-650/13, Delvigne, EU:C:2015:648.

86 It reads: ‘The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot’.

87 On the same day that Puppinck was delivered, the Court of Justice elsewhere (in the widely-discussed Junqueras case on immunities of Members of the European Parliament) stressed the principle of representative democracy: see Case C-502/19, Oriol Junqueras Vies, EU:C:2019:1115, paras. 63, 83.

88 A brief overview of these changes can be found at ⟨europa.eu/citizens-initiative/how-it-works/history_en⟩, visited 11 November 2020.

89 See Art. 15(2) of the new ECI Regulation.

90 The right to petition the European Parliament is also mentioned in Art. 24 TFEU (i.e. among the provisions on Union citizenship) and Art. 44 of the EU Charter of Fundamental Rights.

91 ECJ 9 December 2014, Case C-261/13 P, Schönberger v European Parliament, EU:C:2014:2423, para. 24.

92 Puppinck and Others, supra n. 1, para. 91.

93 Ibid., paras. 91-92.

94 One of Us, supra n. 13, paras. 97-98.

95 Ibid, para. 99.

96 Opinion of AG Bobek, supra n. 27, para. 64.

97 Ibid., para. 78, with reference to European Ombudsman own-initiative inquiry OI/9/2013/TNT, point 20. This was a rare (and welcome) citation of a European Ombudsman inquiry by the EU judiciary. That paragraph from the AG’s Opinion was also cited in the judgment of the Court of Justice.

98 Although, admittedly, the remaining provisions in Art. 11 TEU (on dialogue, consultation etc.) are significantly less regulated than the ECI.

99 Opinion of AG Bobek, supra n. 27, para. 44.

100 ECJ 12 September 2017, Case C-589/15 P, Anagnostakis v Commission, EU:C:2017:663, para. 49.

101 Vogiatzis, supra n. 7, p. 268.

102 Opinion of AG Bobek, supra n. 27, para. 80. The point was made to substantiate the claim that ‘the ECI is much more than a mere symbolic nod toward participative democracy’.

103 See, for example, J. Greenwood, Interest Representation in the European Union (Palgrave Macmillan 2017); D. Coen and J. Richardson (eds.), Lobbying the European Union: Institutions, Actors, and Issues (Oxford University Press 2009).

104 Art. 15(2) of the new ECI Regulation.

105 Editorial, ‘Spitzenkandidaten and the European Union’s System of Government’, 15 EuConst (2019) p. 609 at p. 609, 618.

106 See European Commission, ‘Communication from the Commission to the European Parliament and the Council: Shaping the conference on the future of Europe’, COM(2020) 27 final.