Michael Efler and Others v European Commission (T-754/14)

Contents

Judgment of the General Court (First Chamber)10 May 2017^note(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)In Case T‑754/14,Michael Efler, residing in Berlin (Germany), and the other applicants whose names are listed in the annex, represented by B. Kempen, professor,^notevEuropean Commission, represented initially by J. Laitenberger and H. Krämer, subsequently by H. Krämer and finally by H. Krämer and F. Erlbacher, acting as Agents,THE GENERAL COURT (First Chamber),composed of H. Kanninen, President, E. Buttigieg (Rapporteur) and L. Calvo‑Sotelo Ibáñez‑Martín, Judges,Registrar: S. Bukšek Tomac, Administrator,having regard to the written part of the procedure and further to the hearing on 13 September 2016,gives the following

Judgment

Background to the dispute

1By decision of 27 April 2009, the Council of the European Union authorised the Commission of the European Communities to open negotiations with Canada with a view to concluding a free-trade agreement, subsequently referred to as the ‘Comprehensive Economic and Trade Agreement’ (‘the CETA’). By decision of 14 June 2013, the Council authorised the Commission to open negotiations with the United States of America with a view to concluding a free-trade agreement, subsequently referred to as the ‘Transatlantic Trade and Investment Partnership’ (‘the TTIP’).

2On 15 July 2014, Mr Michael Efler and the other applicants whose names are listed in the annex, submitted, in their capacity as members of the citizens’ committee set up for that purpose, a request for registration of the proposed European citizens’ initiative (‘the ECI’) entitled ‘Stop TTIP’ (‘the ECI proposal’). In respect of its purpose, the ECI proposal states that ‘the European Commission … recommends that the Council cancel the negotiating mandate for the [TTIP] and not conclude [the CETA]’. In respect of the aims pursued, the ECI proposal states that they consist in ‘preventing the TTIP and the CETA because they contain several critical issues such as procedures for the resolution of disputes between investors and States and provisions on regulatory cooperation which threaten democracy and the rule of law …, avoiding opaque negotiations leading to a weakening of the rules on employment protection, social protection, environmental protection, protection of private life and of consumers and preventing public services (for example, water supplies) and culture from being deregulated’ and supporting ‘a different trade and investment policy in [the European Union]’. The ECI proposal refers to Articles 207 and 218 TFEU as the legal bases of that initiative.

3By Decision C(2014) 6501 of 10 September 2014 (‘the contested decision’), the Commission refused to register the ECI proposal in accordance with Article 4(2)(b) of Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1).

4The contested decision states, in essence, that a Council decision authorising the Commission to open negotiations with a view to concluding an agreement with a third country is not a European Union legal act and that a recommendation relating thereto does not therefore constitute an appropriate proposal within the meaning of Article 11(4) TEU and Article 2(1) of Regulation No 211/2011, in so far as such a decision constitutes a preparatory measure in the light of the subsequent decision of the Council to authorise the signing of the agreement, as negotiated, and to conclude that agreement. Such a preparatory decision would produce legal effects solely between the institutions concerned, without changing European Union law, contrary to the case of the decision to sign and conclude a specific agreement, which could be covered by an ECI. The Commission inferred from that that the registration of the ECI proposal, in so far as it seeks to invite it to submit a recommendation to the Council to adopt a decision withdrawing authorisation to open negotiations with a view to concluding the TTIP, must be refused.

5The contested decision states moreover that, in so far as the ECI proposal could be understood as inviting the Commission not to submit to the Council proposals for Council decisions for the signing and conclusion of the CETA or the TTIP or to submit proposals to the Council for decisions not to authorise the signing of those agreements or not to conclude them, such an invitation also does not come within the scope of application of Article 2(1) of Regulation No 211/2011, according to which the ECI seeks the adoption of legal acts necessary for the implementation of the Treaties and producing independent legal effects.

6The contested decision concludes that the ECI proposal is, therefore, 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 accordance with Article 4(2)(b) of Regulation No 211/2011, read in conjunction with Article 2(1) of that regulation.

Procedure and forms of order sought

7By application lodged at the Court Registry on 10 November 2014, the applicants brought the present action.

8By a separate document, lodged with the General Court Registry on 15 April 2016, the applicants brought an application for interim relief, which was dismissed by Order of 23 May 2016, Efler and Others v Commission (T‑754/14 R, not published, EU:T:2016:306). By a document of 17 July 2016, the applicants brought an appeal in accordance with the second subparagraph of Article 57 of the Statute of the Court of Justice of the European Union, which was dismissed by Order of the Vice-President of the Court of 29 September 2016, Efler and Others v Commission (C‑400/16 P(R), not published, EU:C:2016:735).

9The applicants claim that the Court should:— annul the contested decision;— order the Commission to pay the costs.

10The Commission contends that the Court should:— dismiss the action;— order the applicants to pay the costs.

Law

11In support of their action, the applicants invoke two pleas in law, the first alleging an infringement of Article 11(4) TEU, of Article 2(1) and Article 4(2)(b) of Regulation No 211/2011, the second alleging an infringement of the principle of equal treatment.

12As regards the first plea in law, the applicants note in the first place that, in so far as the refusal to register the ECI proposal is based on the fact that the Council decisions seeking to authorise the opening of negotiations with a view to concluding an international agreement are preparatory measures, they do not contest that those decisions are of such a nature. However, the situation is no different with respect to the Council decisions authorising the signing of an international agreement. Moreover, Regulation No 211/2011 covers, in general, all legal acts, without being restricted to measures producing definitive effects, and neither the history of the provisions at issue nor their legal context indicates that the concept of ‘legal act’ must be given a narrow interpretation. Finally, a decision to withdraw a negotiating mandate in favour of the Commission would lead to the end of the negotiations, would be legally binding and would therefore be final.

13The applicants note in the second place that, in so far as the refusal to register the ECI proposal is based on the fact that the Council decisions authorising the opening of negotiations with a view to concluding an international agreement produce only effects between the institutions at issue, the broad concept of legal acts included in Articles 288 to 292 TFEU prohibits that classification from being denied to Commission decisions taken outside the ordinary legislative procedure and prohibits the latter from being excluded from the scope of application of the provisions relating to the ECI, as long as those decisions are legally binding. It does not follow from the wording of the Treaties, from the background thereof, or from the objectives pursued by those Treaties that the principle of democracy, upon which the Union is based, should apply only to persons affected or concerned by the legal act at issue. The Commission contradicts itself also in so far as it accepts, moreover, as admissible an ECI acclamation and confirmation seeking to sign and conclude an agreement whose subject and contents are already fixed.

14The applicants note in the third place that, in so far as the contested decision is based on the ‘destructive’ character of the proposals for acts seeking to withdraw from the Commission the negotiating mandate for the conclusion of the TTIP and to submit to the Council a proposal not to authorise the signing of the TTIP and the CETA or not to conclude those agreements, such proposals could not be blocked by the fact that, in accordance with Article 11(4) TEU and Article 2(1) of Regulation No 211/2011, the proposed legal act should contribute to ‘implementing the Treaties’, since the proposed acts would lead, in one form or another, to making operational the foundations of powers derived from primary law. According to the applicants, the general right of citizens to participate in the democratic life of the European Union includes the power to take action with a view to amending secondary legislation in force, to reform it or annul it in whole or in part. The registration of the ECI proposal would lead to more public debate, which is the primary objective of all ECIs.

15Moreover, if, as the Commission submits for the first time in the statement of defence, all types of international treaty, whether they seek to repeal an existing treaty or to establish a completely new treaty, could be proposed by an ECI, it would be contradictory for the latter not to be able to aim to prevent the conclusion of a treaty in the process of being negotiated.

16The applicants add that a Council proposal not to approve the CETA does not exclude that amended draft transatlantic free trade agreements could be subsequently developed.

17Finally, the ECI proposal does not, in any event, ‘manifestly’ fall outside the framework of the Commission’s powers, as required by Article 4(2)(b) of Regulation No 211/2011.

18The Commission notes at the outset that the plea in law alleging an infringement of Article 11(4) TEU is ineffective, since Regulation No 211/2011, adopted on the basis of the first subparagraph of Article 24 TFEU, constitutes the reference for the review of the lawfulness of Commission decisions relating to the registration of ECI proposals.

19The Commission contends next that a Council decision authorising it to open negotiations with a view to concluding an international agreement, as opposed to a Council decision to sign such an agreement, is purely preparatory, in so far as it produces legal effects only in the relations between the institutions. A systematic and teleological interpretation of Article 2(1) and Article 4(2)(b) of Regulation No 211/2011 leads to the conclusion that a purely preparatory legal act is not a legal act for the purposes of those provisions.

20Furthermore, according to the Commission, only legal acts whose effects go beyond the relations between the institutions of the European Union can be covered by an ECI, because the purpose of the democratic participation that that ECI seeks to promote is to involve citizens in decisions relating to matters which concern, at least potentially, their own legal sphere. The Council and the Commission enjoy sufficient indirect democratic legitimacy to adopt acts whose legal effects are limited to the institutions.

21Moreover, according to the Commission, the ECI proposal circumvents the rule that an ECI cannot request the Commission not to propose a particular legal act or to propose a decision not to adopt a particular legal act. The wording of Article 10(1)(c) of Regulation No 211/2011, in so far as it makes reference to ‘the action it intends to take’, assumes that only ECIs which seek the adoption of a legal act with a precise content or which seek the annulment of an existing legal act are authorised. If the Commission stated, in its communication pursuant to Article 10(1)(c) of Regulation No 211/2011, that it did not intend to propose a corresponding legal act, that would result in an unacceptable political restriction of its right of initiative. In addition, the ECI’s function, consisting in prompting the Commission to publicly address the topic of the ECI and to thus stimulate a political debate, could be fully realised only by an ECI proposal seeking the adoption of a legal act with a precise content or the annulment of an existing legal act. An ECI which requests that a Council decision not be adopted is no longer capable of carrying out the function consisting in launching such a political debate for the first time and amounts to an inadmissible interference in an ongoing legislative procedure.

22Finally, a Council decision to reject the TTIP or the CETA, such as suggested by the ECI proposal, is not independent in scope from the mere failure to adopt a Council decision approving the conclusion of the agreement, so that such a decision is legally superfluous. An ECI with such an aim is functionally equivalent to an ECI requesting that no proposal for a legal act be made and is, on that basis, inadmissible.

23The Court notes that Article 11(4) TEU states that not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the 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.

24As is stated in recital 1 of Regulation No 211/2011, by which the European Parliament and the Council adopted, in accordance with the first subparagraph of Article 24 TFEU, the provisions relating to the procedures and conditions required for the presentation of an ECI for the purposes of Article 11 TEU, the EU Treaty reinforces citizenship of the Union and enhances further the democratic functioning of the Union by providing, inter alia, that every citizen is to have the right to participate in the democratic life of the Union by way of an ECI (judgments of 30 September 2015, Anagnostakis v Commission, T‑450/12, currently under appeal, EU:T:2015:739, paragraph 26, and of 19 April 2016, Costantini and Others v Commission, T‑44/14, EU:T:2016:223, paragraphs 53 and 73). According to that recital, that mechanism allows citizens, following the example of the Parliament under Article 225 TFEU and of the Council under Article 241 TFEU, to directly approach the Commission asking it to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.

25To that end, Article 2(1) of Regulation No 211/2011 defines the ECI as an initiative submitted to the Commission in accordance with that regulation, inviting the 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’, which has received the support of at least one million eligible signatories coming from at least one quarter of all Member States.

26In accordance with Article 4(2)(b) and 4(3) of Regulation No 211/2011, the Commission is to refuse to register an ECI proposal if it manifestly falls outside the framework of its powers to submit a ‘proposal for a legal act of the Union for the purpose of implementing the Treaties’.

27Article 10(1)(c) of that regulation provides that, when the Commission receives an ECI in accordance with Article 9 of that regulation, it is to set out, within three months, its legal and political conclusions on the ECI, the ‘action it intends to take, if any, and its reasons for taking or not taking that action’.

28As regards the scope of the ECI proposal, the applicants stated, in answer to a question posed at the hearing, that its aim was not to request the Commission not to submit to the Council a proposal for an act with a view to authorising the signing of the TTIP and of the CETA and to concluding those agreements, but that it sought to request the Commission to submit to the Council, first, a proposal for a Council act to withdraw the negotiating mandate for the conclusion of the TTIP, secondly, a proposal for a Council act not to authorise the Commission to sign the TTIP and the CETA and not to conclude those agreements.

29Furthermore, the present action does not relate to the competence of the European Union to negotiate the TTIP and CETA agreements, but the applicants contest the grounds invoked in the contested decision for refusing to register the ECI proposal in so far as it seeks to terminate the negotiating mandate for the conclusion of the TTIP and to prevent the signing and conclusion of the CETA and the TTIP.

30In that regard, it is apparent from the contested decision that, according to the Commission, the fact that a Council decision authorising it to open negotiations on the conclusion of an international agreement is preparatory and produces legal effects only between the institutions prevents that decision from being classified as a legal act for the purposes of the regulation at issue and opposes the registration of the ECI proposal in so far as it seeks the withdrawal of such a decision. The same applies to the ECI proposal in so far as it requests the Commission to submit to the Council a proposal for a decision not to authorise the signing of the agreements at issue or not to conclude them, because such a decision does not produce independent legal effects although, according to Article 2(1) of Regulation No 211/2011, ECIs are to seek the adoption of legal acts necessary ‘for the purpose of implementing the Treaties’, which is not so in the present case.

31As was previously stated, the Commission refuses to register ECI proposals which are manifestly outside the framework of powers under which it can submit a ‘proposal for a legal act of the Union for the purpose of implementing the Treaties’.

32It is not disputed that the Commission may, on its own initiative, present a proposal to the Council for an act to withdraw from it the mandate by which it was authorised to open negotiations with a view to concluding an international agreement. The Commission may also not be prevented from presenting to the Council a proposal for a decision not to authorise, ultimately, the signing of a negotiated agreement or not to conclude that agreement.

33The Commission however contends that an ECI proposal cannot relate to such acts and it invokes, first, the fact that the act for the opening of negotiations with a view to concluding an international agreement is preparatory and the absence of its legal effects outside the institutions and, secondly, the fact that the legal acts whose adoption is proposed are not necessary ‘for the purpose of implementing the Treaties’.

34It should be noted at the outset that the parties are in agreement that a Council decision authorising the Commission, in accordance with Articles 207 and 218 TFEU, to open negotiations on the conclusion of an international agreement should be considered to constitute a preparatory act in relation to the subsequent decision to sign and conclude such an agreement and that it produces legal effects between the European Union and its Member States as well as between the institutions of the European Union (see, to that effect, judgments of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 40, and of 16 July 2015, Commission v Council, C‑425/13, EU:C:2015:483, paragraph 28).

35As the applicants correctly claimed, 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 the Commission interprets it, as being limited only to definitive European Union legal acts which produce legal effects vis-à-vis third parties.

36Neither 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, such as in this case the TTIP and the CETA, 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 (see, to that effect, judgments of 4 September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph 40, and of 16 July 2015, Commission v Council, C‑425/13, EU:C:2015:483, paragraph 28) be excluded from the concept of a legal act for the purpose of an ECI.

37On 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 (see paragraph 24 above), 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.

38The Commission’s position, according to which it and the Council have sufficient indirect democratic legitimacy in order to adopt the other legal acts which do not produce legal effects vis-à-vis third parties, has the consequence of limiting considerably recourse to the ECI mechanism as an instrument of European Union citizen participation in the European Union’s normative activity as carried out by means of the conclusion of international agreements. In so far as the reasoning set out in the contested decision can therefore, where appropriate, be interpreted as definitively preventing European Union citizens from proposing any opening of negotiations relating to a new treaty to be negotiated by means of an ECI, that reasoning manifestly runs counter to the objectives pursued by the Treaties and by Regulation No 211/2011 and cannot, therefore, be admitted.

39Accordingly, the Commission’s position in the contested decision, according to which the decision to withdraw authorisation to open negotiations with a view to concluding the TTIP is excluded from the concept of legal act for the purposes of an ECI proposal on the ground that that authorisation does not itself come within that concept due to the fact that it is preparatory and due to the absence of effects vis-à-vis third parties, must also be rejected. That is all the more true since, as the applicants correctly stated, a decision to withdraw authorisation to open negotiations with a view to concluding an international agreement, in so far as it brings those negotiations to a close, cannot be classified as a preparatory act, but is, instead, definitive.

40Moreover, in order to oppose the registration of an ECI, the Commission contends in addition that the Council acts which that proposal seeks to have adopted, in particular Council decisions not to sign or conclude the TTIP and the CETA, amount to ‘destructive’ acts which do not take effect for the purpose of ‘implementing the Treaties’, and, therefore, cannot be covered by an ECI.

41In response to that, it should be noted that the regulation on the ECI contains no information, according to which citizen participation could not be undertaken in order to prevent the adoption of a legal act. Indeed, although, 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 the TTIP and the CETA, which seek to modify the legal order of the European Union.

42As the applicants correctly stated, 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.

43Therefore, 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, contrary to the Commission’s contention, clearly produce independent legal effects by preventing, as the case may be, an announced modification of European Union law.

44The Commission’s position, as it seems to follow from the contested decision, would ultimately mean that an ECI could relate only to the Council decision to conclude or to authorise the signing of international agreements with respect to which the institutions of the European Union have taken the initiative and which those institutions previously negotiated, while preventing European Union citizens from having recourse to the ECI mechanism in order to propose modifications or the withdrawal of such agreements. Indeed, before the Court, the Commission maintained that an ECI could, where appropriate, also include a proposal to open negotiations with a view to concluding an international agreement. However, nothing justifies, in the latter case, the authors of an ECI proposal being obliged to await the conclusion of an agreement so as to be able to subsequently contest only the appropriateness thereof.

45The Commission’s argument, according to which the acts which an ECI proposal requests it to submit to the Council would lead to an inadmissible interference in an ongoing legislative procedure, also cannot succeed. The aim pursued by the ECI is to allow European Union citizens to participate more in the democratic life of the European Union, in particular, by presenting in detail to the Commission the questions raised by the ECI, by requesting that institution to submit a proposal for a European Union legal act after having, as the case may be, presented the ECI at a public hearing organised at the Parliament, in accordance with Article 11 of Regulation No 211/2011, therefore, by stimulating a democratic debate without having to await the adoption of the legal act whose modification or withdrawal is ultimately sought.

46To admit such a possibility therefore also does not infringe the principle of institutional balance, characteristic of the institutional structure of the European Union (see, to that effect, judgment of 14 April 2015, Council v Commission, C‑409/13, EU :C:2015:217, paragraph 64), in so far as it is for the Commission to decide whether or not it will accept the ECI by presenting, in accordance with Article 10(1)(c) of Regulation No 211/2011, by means of a communication, its legal and political conclusions on the ECI, the action it intends to take, if any, and its reasons for taking or not taking that action.

47Consequently, far from amounting to an interference in an ongoing legislative procedure, ECI proposals 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.

48Finally, nothing precludes that the action that the Commission ‘intends to take, if any’, for the purposes of Article 10(1) of Regulation No 211/2011, may consist in proposing that the Council adopt the acts sought by the ECI proposal. Contrary to the Commission’s contentions, nothing prevents, as the case may be, the institutions of the European Union from negotiating and concluding new draft transatlantic free-trade agreements following the adoption by the Council of acts which are the object of the ECI proposal.

49In view of all the above considerations, it must be concluded that the Commission infringed Article 11(4) TEU and Article 4(2)(b), in conjunction with Article 2(1), of Regulation No 211/2011, by refusing to register the ECI proposal.

50Consequently, the first plea in law must be upheld and, therefore, the action in its entirety, without it being necessary to rule on the second plea in law.

Costs

51Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs of the present proceedings and those relating to the interim proceedings, in accordance with the form of order sought by the applicants.

Operative part

On those grounds,THE GENERAL COURT (First Chamber)hereby:

1.Annuls Commission Decision C(2014) 6501 final of 10 September 2014 rejecting the request for registration of the proposed European citizens’ initiative entitled ‘Stop TTIP’;

2.Orders the European Commission to pay its own costs and those incurred by Mr Michael Efler and the other applicants whose names are listed in the annex, including the costs relating to the interim proceedings.

Delivered in open court in Luxembourg on 10 May 2017.