Case T‑561/14

European Citizens’ Initiative One of Us and Others

v

European Commission

(Institutional law — European Citizens’ Initiative — Research policy — Public health — Development cooperation — EU financing of activities involving the destruction of human embryos — Commission communication pursuant to Article 10(1)(c) of Regulation (EU) No 211/2011 — Actions for annulment — Capacity to bring legal proceedings — Challengeable act — Partial inadmissibility — Judicial review — Obligation to state reasons — Manifest error of assessment)

Summary — Judgment of the General Court (Second Chamber, Extended Composition), 23 April 2018

1.      Judicial proceedings — Absolute bar to proceeding — To be considered of the Court's own motion

(Rules of Procedure of the General Court, Art. 129)

2.      Actions for annulment — Natural or legal persons — Locus standi — Action of a named entity (European Citizens’ Initiative) without legal personality — Inadmissibility

(Art. 263, fourth para. TFEU; European Parliament and Council Regulation No 211/2011)

3.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Communication of the Commission embodying its decision not to submit the proposal for a legal act in response to a European Citizens’ Initiative — Included

(Art. 11(4) TEU; Art. 263 TFEU; European Parliament and Council Regulation No 211/2011, Art. 10(1)(c))

4.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Decision of refusal — Included — Condition

(Art. 263 TFEU)

5.      Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Requirement on the Commission to take the specific action proposed by a European Citizen’s Initiative — No such requirement

(Arts 11(4) TEU and 17(1) to (3) TEU; Arts 225 TFEU, 241 TFEU and 289 TFEU; European Parliament and Council Regulation No 211/2011, Recital 1 and Arts 4 and 10(1)(c))

6.      Acts of the institutions — Preamble — Binding legal force — No binding legal force

7.      Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Examination by the Commission — Requirement to set out legal and political conclusions separately — No such requirement

(European Parliament and Council Regulation No 211/2011, Recital 20 and Art. 10(1)(c))

8.      Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case

(Art. 296, second para. TFEU)

9.      Acts of the institutions — Statement of reasons — Obligation — Scope — Communication of the Commission embodying its decision not to submit the proposal for a legal act in response to a European Citizens’ Initiative

(Art. 296 TFEU; European Parliament and Council Regulation No 211/2011, Art. 10(1)(c))

10.    Actions for annulment — Pleas in law — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality

(Arts 263 TFEU and 296 TFEU)

11.    Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Examination by the Commission — Communication embodying its decision not to submit a proposal for a legal act to the EU legislature — Judicial review — Limits

(Art. 17(1) TEU; European Parliament and Council Regulation No 211/2011, Art. 10(1)(c))

1.      See the text of the decision.

(see para. 53)

2.      It is apparent from the very wording of the Article 263, fourth paragraph, TFEU that only natural persons or entities with legal personality may bring an action for annulment under that provision. However, in certain specific cases, an entity which does not have legal personality under the law of a Member State or of a non-member State can nevertheless be regarded as a ‘legal person’ within the meaning of Article 263, fourth paragraph, TFEU and be allowed to bring an action for annulment on the basis of that provision. That is the case, in particular, where by their acts or actions, the European Union and its institutions treat the entity in question as being a distinct person, which may have rights specific to it, or be subject to obligations or restrictions.

It is therefore necessary to declare inadmissible an action brought by an entity known as a ‘European Citizens’ Initiative’, which does not have legal personality under the law of a Member State or of a third State and which has not been treated as distinct person. In that regard, it is not apparent from Regulation No 211/2011 on the citizens’ initiative that that regulation confers legal personality on a European Citizens’ Initiative by treating it as a distinct person. Such an entity does not have capacity to bring legal proceedings before the EU judicature.

(see paras 58-63)

3.      An action for annulment based on Article 263 TFEU is available against all measures adopted by the EU institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position.

Such is the case as regards a communication adopted pursuant to Article 10(1)(c) of Regulation No 211/2011 on the citizens’ initiative, by means of which the Commission adopts a final position not to submit a proposal for a legal act in response to a European Citizens’ Initiative. That communication presents the Commission’s final position, the Commission having decided not to submit a proposal for a legal act in response to the European Citizens’ Initiative at issue and, more generally, not to take any action in response to it. In addition, that communication constitutes the completion of the specific procedure initiated and conducted by the applicants on the basis of Regulation No 211/2011 and its adoption constitutes an obligation for the Commission. In view of those elements, the contested communication produces binding legal effects such as to affect the interests of the applicants by bringing about a distinct change in their legal position.

The citizens’ right, derived from Article 11(4) TEU, is intended to reinforce citizenship of the Union and to enhance the democratic functioning of the European Union, the ultimate objective being to encourage participation by citizens in democratic life and to make the Union more accessible. The non-submission of the Commission’s refusal to submit to the EU legislature a proposal for a legal act, formulated in the communication provided for in Article 10(1)(c) of Regulation No 211/2011, to judicial review would compromise the realisation of that objective, in so far as the arbitrary risk on the part of the Commission would deter all recourse to the European Citizens’ Initiative mechanism, regard being had also to the stringent procedures and conditions to which that mechanism is subject.

(see paras 68, 71, 77, 93)

4.      With regard to determining the existence of an act against which an action for annulment may be brought, an act of the Commission that amounts to a rejection must be appraised in the light of the nature of the request to which it constituted a reply. In particular, a refusal constitutes an act in respect of which an action for annulment may be brought under Article 263 TFEU, provided that the act which the institution refuses to adopt could itself have been contested under that provision. However, the situation is different where the Commission’s decision is taken in a procedure which is clearly defined by an EU regulation, under which the Commission is required to rule on a request made by an individual under that regulation.

(see paras 85, 86)

5.      The Commission is not required to take the specific action proposed by the European Citizens’ Initiative. The power of legislative initiative accorded to the Commission by Articles 17(2) TEU and 289 TFEU means that it is, as a rule, for the Commission to decide whether or not to submit a proposal for a legislative act and, as the case may be, to determine its subject matter, objective and content. The reason for that near-monopoly of legislative initiative conferred by the Treaties upon the Commission lies in that institution’s function which, under Article 17(1) TEU, is to promote the general interest of the European Union, and in the independence it enjoys, pursuant to the third subparagraph of Article 17(3) TEU, in carrying out its responsibilities.

That near-monopoly is not affected by the right to the European Citizens’ Initiative provided for in Article 11(4) TEU. In that regard, confirmation of the intention of the founding authority of the Union not to confer the power of legislative initiative on the European Citizens’ Initiative mechanism is to be found in recital 1 of Regulation No 211/2011 on the citizens’ initiative, which equates, in essence, the right conferred on the European Citizens’ Initiative with that conferred on the Parliament, pursuant to Article 225 TFEU, and on the Council, pursuant to Article 241 TFEU. A request from the Parliament or the Council does not require the Commission to submit a proposal for a legal act. Confirmation of that intention on the part of the founding authority is also to be found in the very wording of Article 10(1)(c) of Regulation No 211/2011. Such a conclusion is not, moreover, called into question by the existence of the procedure for registering an ECI proposal, provided for in Article 4 of that regulation.

As the objective of the European Citizens’ Initiative is to invite the Commission, within the framework of its powers, to submit a proposal for an act, allowing the Commission broad discretion in exercising its powers of legislative initiative does not undermine that objective.

(see paras 109-111, 113, 114, 116, 124)

6.      See the text of the decision.

(see para. 128)

7.      Since the obligation to set out separate legal and political conclusions on a European Citizens’ Initiative, mentioned in recital 20 of Regulation No 211/2011 on the citizens’ initiative, is not reiterated in the body of Article 10(1)(c) of that regulation, it is its content that must take precedence. It follows that the Commission is not under such an obligation when drafting the communication provided for in that provision. In any event, supposing that the Commission were under such a legal obligation, that obligation being purely formal, its breach cannot result in the annulment of the communication provided for in Article 10(1)(c) of Regulation No 211/2011.

(see paras 130, 131)

8.      See the text of the decision.

(see paras 141, 142, 144, 145)

9.      To the extent that a communication adopted pursuant to Article 10(1)(c) of Regulation No 211/2011 on the citizens’ initiative constitutes an act against which an action for annulment may be brought, it is subject to the obligation to state reasons laid down by Article 296 TFEU and must therefore enable the organisers of a European Citizens’ Initiative to determine whether it is vitiated by defects and the EU Courts to exercise their powers of review. In particular, the Commission must set out the reasons, legal, political or other, that led it to decide not to take action on the proposals for legal acts submitted by the European Citizens’ Initiative at issue. The obligation for the Commission to set out, in the communication adopted pursuant to Article 10(1)(c) of Regulation No 211/2011, the reasons for taking or not taking an action following a European Citizens’ Initiative gives specific expression to the obligation to state reasons laid down in the context of that provision.

(see paras 143, 147)

10.    See the text of the decision.

(see para. 146)

11.    A communication adopted pursuant to Article 10(1)(c) of Regulation No 211/2011 on the citizens’ initiative, which contains the final decision of the Commission not to submit a proposal for a legal act to the EU legislature, must undergo limited review by the Court, aimed at verifying, in addition to the adequacy of its statement of reasons, the existence, inter alia, of manifest errors of assessment vitiating that decision. In exercising its powers of legislative initiative, the Commission must be allowed broad discretion, in so far as, through that exercise, it is called upon, pursuant to Article 17(1) TEU, to promote the general interest of the Union by carrying out, possibly, the difficult task of reconciling divergent interests. It follows that the Commission must be allowed broad discretion in deciding whether or not to take an action following a European Citizens’ Initiative.

(see paras 169, 170)