Following the European Commission’s disappointing and un-founded refusal to provide an appropriate follow up on “ONE OF US”, the most successful European Citizens’ Initiative (ECI) so far, the organizers of the ECI have brought a formal action (case T 561/14) against the European Commission to the General Court of the EU. In their application, which was filed on 25 July 2014, they have demanded that the Commission’s reply to their initiative, which was issued as Communication COM(2014) 355 final on 28 May 2014, be annulled, and that the Commission be obliged to issue another, more appropriate reply to the pro-life ECI that was endorsed by 1.7 million Europeans.
The Commission’s reply to this court application has now been received. It represents a moral victory for “ONE OF US”, and a disaster for the Commission:
- The Commission’s defence is based solely on formal arguments, claiming that Communication COM(2014) 355 final was “not a legal act that was intended to produce legal effects”, and that for this reason the court action should be declared inadmissible. In practical terms this means that the Commission claims to have the right to turn down a successful ECI without such decision being subject to any legal review. If accepted by the Court, this would de facto totally undermine the usefulness of the ECI as an instrument of participatory democracy.
- The Commission absurdly claims that the reply to a successful ECI is not required to be based on consistent reasons or accurate factual assumptions, its sole purpose being that of “allowing for a possible political debate among citizens and within EU institutions”. Apparently the Commission believes that such a debate could not take place in the absence of a Commission document, even if that document may contain inconsistencies and factual misrepresentations. (cf. § 39 of the Commission’s submission)
- By consequence, the Commission argues that in assessing whether it has fulfilled its legal obligation of giving a response to a successful ECI the quality of that response is “irrelevant”. It claims that “only in extreme cases of manifest incorrectness of … factual assumptions or legal interpretations the Commission could be said not to have discharged its obligation under Article 10 (1) (c) of Regulation 211/2011”, thereby implying that false factual assumptions and erroneous legal interpretations must be accepted if they are not “extreme”. (cf. § 48 of the Commission’s submission)
- As it appears, the Commission is not even trying to convince the Court that the reply given to ONE OF US was based on correct factual assumptions and legal interpretations. Instead, it claims that the manifest incorrectness of those assumptions and interpretations was not “extreme”.
- ONE OF US takes note of, and expresses its astonishment over, the Commission’s complete failure in defending the material content of Communication COM(2014) 355 final against the well-founded criticism that was raised against it. This means that, whatever the outcome of the present lawsuit may be, this criticism will remain unchallenged and uncontradicted.
- Given that the Commission itself does not anymore seem convinced of the accuracy of factual assumptions and legal interpretations in Communication COM(2014) 355 final, the organizers of ONE OF US invite the Commission to withdraw that Communication and issue a new reply to their successful ECI.
- ONE OF US will also submit a formal replique to the Commission’s submission within the time that was set for this purpose for the Court, i.e. before 14 April 2015.