European Court: Commission’s reply to ONE OF US was based on (not manifest) errors

4k9vip.jpgAfter nearly four years of litigation, the Tribunal of the European Union has issued its long awaited judgment in the case of One of Us v. the European Commission.

From a formal point of view, the pro-life European Citizens’ Initiative (ECI), which, having collected 1,9 million signatures for the Commission to stop funding activities involving the destruction of human embryos, remains the most successful of all ECIs until today, has lost the case. But from a substantial point of view, the pro-lifers have won a half-victory, and they might now examine the possibility of having the decision reviewed by the EU’s highest judicial Instance, the Court of Justice of  the EU.

First and foremost, One of Us have won the argument concerning the admissibility of the complaint. The Court has rejected the Commission’s claim that its reply to a successful ECI was not subject to any legal review (implying  that such a reply could in theory consist in a statement such as “leave us alone, we just don’t care about you and your concerns”, which is pretty much like what the Commission did in the case of the One of Us ECI). It results from the decision that the Commission is bound to give proper replies to successful ECIs, even if it does not happen to sympathize with the cause that is being defended.

However, the judgment, pointing to the wording of Article 11 TEU (which says that through an ECI the Commission is “invited” to take action),  still leaves a (far too) wide margin of discretion to the Commission in deciding whether it should make a formal legislative proposal in reaction to a successful ECI. Apparently the judges found it more important to protect the Commission’s monopoly of legislative initiative than to turn the ECI into a meaningful instrument of democracy. One has strong reason to wonder whether, if this judgment stands, many more citizens   will bother to organize or sign an ECI according to the EU’s complicated and burdensome rule book. It could be that with this judgment, the Court has killed the ECI as an institution.

But the most absurd part of the decision clearly is where the Court deals with the Commission’s alleged errors of assessment (see §§ 159-183 of the decision).

Given that already during the procedure it had become sufficiently clear that the sympathies of the judges did not lie with the pro-life cause, the question was not whether the ECI organizers would win the case, but which pretext the Court would find to make them lose. The answer is given in   § 170:

“The contested communication, 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 simpler words, the Court finds that more 1 million citizens who have brought a successful ECI before the Commission do not have the right to a reply that is free of errors, but only to one that is free of “manifest errors”.

The judges then go on to qualify the errors of Commission, which have been amply demonstrated by the pro-lifers in their written submissions to the Court (see here and here), as “not manifest”. As a mere matter of precaution, they abstain from giving an explanation as to how to distinguish “manifest” from “non-manifest” errors, but considering that the Commission’s scurrilous claim that its so-called “triple lock” on research funding (which in fact allows the funding of activities that may be illegal in 27 out of 28 Member States) is a guarantee  for high ethical standards in research is not qualified as “manifest” error, one is left to wonder how “manifest” an error must be in order for the Tribunal to call it such.

One must read between the lines: The Court apparently did not want the Commission to lose the case, so it had to against a group of pro-lifers, so it had to invent a test that even the Commission could pass. But the implication is two fold:

  • Citizens having launched a successful ECI are not entitled to error-free answers from the Commission; and
  • the Commission’s reply to the ECI “One of Us” were in fact full of errors, but these were somehow just not “manifest” enough.

This will hardly encourage citizens to avail themselves of the ECI mechanism. Nor will it strengthen their trust in the EU’s judiciary institutions.

It would be in the interest of democracy and the rule of law if the organizers of the One of Us ECI file an appeal against this judgment.