Case T‑754/14

Michael Efler and Others

v

European Commission

(Law governing the institutions — European citizens’ initiative — Transatlantic Trade and Investment Partnership — Comprehensive Economic and Trade Agreement — Manifest lack of powers of the Commission — Proposal for a legal act for the purpose of implementing the Treaties — Article 11(4) TEU — Article 2(1) and Article 4(2)(b) of Regulation (EU) No 211/2011 — Equal treatment)

Summary — Judgment of the General Court (First Chamber), 10 May 2017

1.      Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Scope — Legal acts of the Union — Concept — Decision of the Council authorising the opening of negotiations with a view to concluding an international agreement — Included

(Arts 2 TEU and 11(4) TEU; Arts 207(3) and (4) TFEU, 218 TFEU and 288, fourth para., TFEU; European Parliament and Council Regulation No 211/2011, Arts 2(1), and 4(2)(b))

2.      Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Purpose of a citizens’ initiative — Prevention of the conclusion of an international agreement likely to modify the legal order of the Union — Lawfulness — No infringement of the principle of institutional balance

(Art. 11(4) TEU; European Parliament and Council Regulation No 211/2011, Art. 2(1))

1.      The concept of a legal act, for the purposes of Article 11(4) TEU, Article 2(1) and Article 4(2)(b) of Regulation No 211/2011, cannot, in the absence of any indication to the contrary, be understood as being limited only to definitive European Union legal acts which produce legal effects vis-à-vis third parties. Neither the wording of the provisions at issue nor the objectives pursued by them justify in particular that a decision authorising the opening of negotiations with a view to concluding an international agreement, taken under Article 207(3) and (4) TFEU and Article 218 TFEU and which clearly constitute a decision for the purposes of the fourth subparagraph of Article 288 TFEU be excluded from the concept of a legal act for the purposes of a European Citizens’ Initiative (ECI).

On the contrary, the principle of democracy, which, as it is stated in particular in the preamble to the EU Treaty, in Article 2 TEU and in the preamble to the Charter of Fundamental Rights of the European Union, is one of the fundamental values of the European Union, as is the objective specifically pursued by the ECI mechanism, which consists in improving the democratic functioning of the European Union by granting every citizen a general right to participate in democratic life, requires an interpretation of the concept of legal act which covers legal acts such as a decision to open negotiations with a view to concluding an international agreement, which manifestly seeks to modify the legal order of the European Union.

(see paras 35-37)

2.      The regulation on the ECI contains no indication that citizen participation cannot be undertaken in order to prevent the adoption of a legal act. Whilst, according to Article 11(4) TEU and Article 2(1) of Regulation No 211/2011, the proposed legal act must contribute to the implementation of the Treaties, that is the case with acts whose object is to prevent the conclusion of international agreements which seek to modify the legal order of the European Union.

In that regard, the objective of participation in the democratic life of the European Union pursued by the ECI mechanism manifestly includes the power to request an amendment of legal acts in force or their annulment, in whole or in part. Therefore, nothing justifies excluding from democratic debate legal acts seeking the withdrawal of a decision authorising the opening of negotiations with a view to concluding an international agreement, as well as acts whose object is to prevent the signing and conclusion of such an agreement, which clearly produce independent legal effects by preventing, as the case may be, an announced modification of European Union law.

Consequently, far from amounting to an interference in an ongoing legislative procedure, ECI proposals that the Council annul the negotiating mandate for one international agreement and refrain from concluding another constitute an expression of the effective participation of citizens of the European Union in the democratic life thereof, without undermining the institutional balance intended by the Treaties.

(see paras 41-43, 47)