General Court rules in Favour of Minority Safepak ECI

2017-03-16 News

At first glance, the annulment of the Commission’s decision to refuse registration of the Minority Safepak ECI seems like a landmark decision in defending EU citizens’ rights of democratic participation. At the fourth time of asking ECI organisers have successfully challenged the Commission’s restrictive approach to the ECI, but as explained in this short blog post by James Organ (School of Law and Social Justice at the University of Liverpooit) it is only a minor, narrow victory for the ECI and one that leaves many questions still to be answered in the ECI’s legal saga.

The Minority Safepak initiative proposed a range of measures “to improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union.” The Commission refused to register the ECI because it “considers that there is no legal basis [to] allow the Commission to present a complete set of proposals for the ‘Minority Safepak’.” In other words some aspects of the initiative were manifestly outside the framework of the powers of the Commission to propose a legal act.

Minority Safepak organisers legally challenged the Commission decision on two grounds. First because the Commission had not sufficiently explained why their ECI proposal was not registered, or which parts of the initiative were admissible. Secondly, the organisers claimed the initiative proposals were within the powers of the Commission to propose a legal act and so should have been registered, and that if the Commission considered some aspects of the ECI proposal to be manifestly outside their powers, the rest of the initiative, as requested, should be registered. The Commission accepted that some measures in the ECI proposal were within its powers to propose a legal act of the Union, but decided to interpret EU law as not allowing the Minority Safepak ECI registration.

The General Court annulled the Commission decision to refuse to register the Minority Safepak ECI on the basis of the first of the organiser’s claims: “[The Commission] decision manifestly does not contain sufficient elements to enable the applicant to ascertain the reasons for the refusal to register the proposed ECI”. All ECI organisers must be able to understand which aspects of their proposal the Commission believes can be registered so that they are in a position to resubmit their proposal if they wish. The Court also reaffirmed the importance of the duty to state reasons to the ECI’s purpose of reinforcing citizenship and the participation of citizens in its democratic life.

The strengthened procedural obligation on the Commission and the reiteration of the ECI’s democratic importance is a step forward, but the victory for the Minority Safepak organisers and the ECI is only a small one. The Commission is not obliged to register the Minority Safepak initiative, and the reason it refused registration was not discussed in court. The Commission only needs to give further explanation and could easily decide to refuse to register the initiative again. ECI organisers in the future can expect a lot clearer explanation for any registration refusal and will more easily be able to adapt proposals for resubmission, but the Court’s decision does not increase the likelihood of registration or challenge the Commission’s restrictive interpretation of the ECI registration criteria. The Court also left (at least) two important questions unanswered.

First, the Court did not rule on the Commission’s interpretation that no part of an ECI proposal can be registered when some aspects are deemed inadmissible. The Court stated that the lack of information precluded this; particularly the fact that the Commission gave no indication of which parts of the initiative did not meet this criteria. There is no provision in the ECI Regulation that states that an initiative cannot be registered in part, or that alteration of the proposal and resubmission cannot be suggested. Despite this, and contrary to the clearly expressed wishes of the organisers, the Commission decided that partial registration was not possible. A decision that limits the scope of the ECI, increases the burden on ECI organisers, and acts as a barrier to citizen participation.

Secondly, there was no consideration of the organisers claim that there was a legal basis for all aspects of their proposal. Again, the Court stated that this was precluded by a lack of information. The three previous ECI judgments all approved the Commission’s approach to assessing legal bases. This recent judgment does nothing to clarify the key point of whether the Commission is justified in its interpretation of the threshold that citizens need to reach to meet the registration criteria. I have described the Commission’s interpretation elsewhere as organisers needing to establish that a proposal is clearly within the powers of the Commission, rather than the lower threshold that a proposal must not be manifestly outside. Again this reduces the scope for ECI proposals and increases the burden for legal expertise on ECI organisers.

The Commission’s defence in the Minority Safepak and other ECI cases gives the impression that the Commission does not sees its role as facilitating registration of an ECI to enable citizen participation, but a purely legal test to verify whether the organising committee in its proposal have met the high threshold the Commission has set. However, since the last refusal to register an ECI, the Stop TTIP initiative, there have been 13 ECIs registered. Some registrations were surprising, and there was even a court application to annul a decision to register an ECI. So perhaps the Commission has started to modify its role and its interpretation of the ECI regulation in advance of further court decisions.

The next instalments in the ECI legal drama are eagerly anticipated: the publication of the Stop TTIP judgment, the ‘Anagnostakis’ and ‘Izsak and Dabis’ appeals, and the One of Us challenge to the Commission response at the end of the ECI process. In the Minority Safepak case, we have the first successful challenge of a Commission ECI decision and a small, procedural victory for EU citizen participation. The increased duty to explain decisions is welcomed, but there are numerous questions unanswered and the ECI still needs substantial legislative revision, if it is to fully achieve its aim of enhancing the democratic life of the EU.