“One of Us” puts European Commission on the defensive

18581490_1494894630582932_1089524314007024045_n-e1495465089663.jpgThe hearing of the case One of Us vs. the European Commission was held on Tuesday 16 May 2017 before a Chamber of five judges of the Court of Justice of the European Union (CJEU) in Luxembourg.

The European Citizens’ Initiative (ECI) “One of Us”, which had gathered nearly two million signatures in Europe in 2012/2013, calls for a ban on European funding for activities involving the destruction of human embryos, in particular in research and development aid cooperation. However, in a poorly argued Communication issued in May 2014, the European Commission refused to transmit the citizens’ initiative to the European Parliament for debate, thus effectively assuming for itself a right to block the process.

The hearing on Tuesday, May 16, 2017, allowed Paul Diamond, the British lawyer speaking for the initiative, to set the focus the debate on the question of how the ECI can contribute to strengthening democracy if it can be arbitrarily turned down like this (see his plea: Oral argument).

The substance of the questions put to the Court are: is there the minimum standard to which the Commission is to be held in its reply, or can the Commission just do anything it likes without even providing a solid and conclusive reasoning? Is the Commission’s action, or failure to act, on an ECI exempt from review by the CJEU? Does the Commission, an executive body far removed from any democratic election or supervision, have the right to simply block an initiative it does not sympathise with? Should citizens therefore propose only initiatives which they know are fully in line with the Commission’s own agenda?

As the Commission’s representative pointed out, the Commission’s point of view indeed is that it has a “monopoly on political initiative” in the EU framework, and therefore must have the right to block successful ECIs for entirely discretionary reasons – or perhaps even for no reasons at all. “The organizers’ disappointment is of no interest to the Commission. The applicants’ challenge only reflects their substantive disagreement over the presuppositions of the Commission. There is a right to be received by the Commission and it must make a finding, but no more”, he said sententiously. As one observer said, “he talked himself quite into a corner”.

If the Court were to follow this line of reasoning, that would sound the death-knell to the ECI as an instrument to make the EU more democratic. Already now, following the initial enthusiasm in 2012, there are hardly any new proposals for ECIs. The Commission has refused to register many ECIs that have been proposed – and very clamorously when it registered the pro-family initiative “Mum Dad & Kids”, it made a public statement in which it hinted that it opposed this initiative and would do everything it could to prevent its success. It is yet unclear whether “Mum Dad & Kids”, who as a matter of precaution are themselves counting the signatures collected prior to submitting them, have been successful in collecting more than 1 million signatures – but very clearly it is the only initiative in years to at least have come close to that target.
In the law courts, however, it is the Commission who increasingly comes under pressure. The Court of Justice recently issued two decisions (Bürgerausschuss für die Bürgerinitiative Minority SafePack v. European Commission, T-646/13, and Michael Efler and Others v Commission, T-754/14) – both condemning the European Commission for wrongfully not having registered initiatives that according to the Court at least partially fulfilled the criteria for registration. But the “One of Us” case is different, and from an institutional point of view far more important, as it concerns an initiative whose compliance with the conditions for registration never stood in doubt and which was successful in collecting (far more than) 1 million signatures, but which nevertheless was turned down by the Commission in a completely arbitrary manner – on the grounds that, as the Commission’s agent made clear in the court room, the Commission feals entitled to such arbitrariness.   

Bizarrely, the European Council and the European Parliament pleaded in support of the Commission and against “One of Us”, thus undermining their own institutional roles. On the other hand, “One of Us” was supported by the Polish government, which pointed out the legal, logical, and ethical flaws of the Commission’s Communication.
Legal counsel Paul Diamond said he was pleased with the outcome of the hearing: “I feel that all the arguments have been well developed and that the Court is fully aware that the future of the ICE is in its hands “.The Court’s decision should be known towards the end of the year.