The Court of Justice of the European Union (CJEU) has ruled that the European Commission was entitled to refuse to take any action on a legislative proposal brought forward under the European Citizens’ Initiative (ECI) procedure provided for in EU Regulation 211/2011 (the “Regulation”). This decision outlines the factors the Commission takes into account when evaluating ECIs and provides reassurance to companies operating in politically controversial industries that such proposals will be subject to the normal checks and balances before becoming law.

The Regulation implements Article 11 of the Treaty on the European Union and Article 24 of the Treaty on the Functioning of the European Union. It requires the European Commission to give consideration to a legislative proposal that is supported by at least 1 million signatures from at least seven EU member states. The signatures must be gathered by a committee consisting of at least seven EU citizens of voting age, who must also be from at least seven member states. Within three months of presenting the signed proposal, the committee must be given the opportunity to meet with the Commission to explain the proposal in detail, as well as to present the proposal to a public hearing in the European Parliament. The Commission must then provide a formal, reasoned response setting out what action it proposes to take in response to the ECI.

In European Citizens’ Initiative One of Us and others v European Commission and others, Case T-561/14, the organising committee submitted a proposal to prevent EU bodies from funding any activities that would destroy human embryos, including stem cell research and abortions. After the required meeting and hearing, the Commission issued a response stating that it did not propose to take any further action. It set out a number of reasons for this decision, including:

  • The EU was already obliged to take into account the Charter of Fundamental Rights when allocating funding, including the right to life, the right to human dignity and the right to the integrity of the person.
  • The legislation which the initiative sought to amend had already been recently considered by the European Parliament and the Council of the European Union.
  • A number of the concerns raised by the initiative were already addressed by existing rules and/or had previously been considered by the Commission.
  • The proposals would complicate the EU’s provision of public health assistance to developing countries and make it more difficult to achieve the Millennium Development Goals and other internationally agreed targets.

The members of the committee applied to the CJEU to annul the Commission’s decision. They argued that the Commission could only refuse to take action on an ECI in three specific situations:

  1. Where the proposal was no longer necessary because the issue to be addressed had been resolved while the ECI was in progress;
  2. Where it was impossible to implement the ECI; or
  3. Where the ECI contained no specific proposals for action.

They also claimed that the Commission’s reasons were inadequate and that its evaluation of the proposals was inaccurate.

The CJEU rejected each of these arguments. It would be incompatible with the requirement for the Commission to act independently if it were required to initiate legislation in response to every ECI. The function of the ECI system was to allow citizens to bring an issue to the Commission’s attention, not to require it to take specific action.

As regards the Commission’s reasoning, the requirement was that it should be set out in a manner appropriate to the proposal at issue, with sufficient clarity to enable the persons concerned to ascertain the reasons for the decision and to enable the court to exercise its power of review. It did not have to set out all the relevant facts and points of law. The explanation given by the Commission in this case was sufficient.

Finally, the Commission had to take into account the general interests of the EU and balance divergent interests, which required it to enjoy a broad discretion in deciding what action to take on an ECI. The court’s power of review was limited to determining whether the reasons were adequately stated and whether there were any manifest errors vitiating the assessment. There were no such errors in this case. The claim was therefore dismissed, and the committee members were ordered to pay the Commission’s costs.

Comment

To date, only four ECIs have reached the required 1 million signatures since the procedure was introduced in 2011. However, this was the first time an ECI reached the required threshold without resulting in any action by the Commission. Previous responses by the Commission have included a wide range of measures, including policy changes, further public and/or expert consultation, legislative changes, and increased enforcement of existing legislation.

The topics covered in the four ECIs – pesticides, vivisection, water privatisation and now stem cell research – illustrate the potential for controversy that is inherent in the process. Companies operating in politically sensitive fields will welcome this clarification that the Commission has a broad discretion as to whether or not to take action in response to an ECI. The reasons given by the Commission also offer an interesting insight into when it will decline to act, namely where the issues raised are already adequately addressed elsewhere and/or have been recently considered by the relevant EU bodies, or where the proposal would conflict with other legitimate goals of the EU.