Opinion of the Advocate General — ECLI:EU:C:2023:744
Date: 2023-10-05
Language of the case: Romanian
Subject matter: Provisions governing the Institutions
Procedure: Action for annulment;Appeal - unfounded
Origin: Romania

summary, the decision to register an (over-inclusive) initiative in part appears to be an efficient way for the Commission to deliver on the objective of ensuring easy accessibility to the ECI mechanism, while ensuring that support will not be collected and discussion will not be engaged among Union citizens on matters in respect of which the Commission has no power to act. 93. In that context, I would add that the contested decision constitutes a reaction to the Court’s judgment in Izsák and Dabis v Commission from which it follows, in essence, and as I have already observed, that the initial refusal, on the part of the Commission, to register the ECI at issue resulted from an incorrect interpretation of the Treaty provisions concerning the EU cohesion policy, which were referred to as a possible basis for the legal act(s) that the Commission was invited to propose. 94. More specifically, while the initial position of the Commission consisted in holding, as exhaustive, the list of handicaps that require particular attention in relation to a specific region, as provided for by Article 174 TFEU, the Court stated, in the abovementioned judgment, that that list was in fact indicative. I understand that it is in that light that the Commission decided to register the ECI at issue, (60) while also taking the view that some of the elements submitted were manifestly outside its powers to submit a proposal for a legal act. Accordingly, its decision to make the registration of the initiative at issue subject to the understanding that ‘it aims at proposals … for legal acts setting out the tasks, priority objectives and the organisation of the Structural Funds and provided that the actions to be financed lead to the strengthening of the economic, social and territorial cohesion of the Union’ (61) clarified, for the potential signatories of that initiative, what the possible subject matter of the Commission’s action could be. In that way, and as I have already observed, the Commission arguably aimed at making sure that Union citizens were given an opportunity to support that initiative and, if the necessary support were to be found, (62) trigger the policy discussion on the abovementioned theme. At the same time, as I have also already noted, by circumscribing the initiative in that way, the Commission appears to have sought to avoid a situation where support is asked for and expectations are created on the basis of flawed premisses, as to the powers that are conferred upon the European Union and, more specifically, upon the Commission within the context of the proposed initiative at issue. 95. In the light of those considerations, I am of the view that the General Court interpreted Article 4(2)(b) of the 2011 ECI Regulation correctly when it held, in paragraph 116 of the judgment under appeal, that the Commission could register, by the contested decision, the ECI at issue on a specific understanding as to that ECI’s possible scope. VI. Conclusion 96. Without prejudice to either the substance of the other plea of the single ground of appeal brought by Romania or the fixing of the costs, I propose that the Court dismiss the second plea of the single ground of appeal in Case C‑54/22 as unfounded. 1 Original language: English. 2 That is, judging by numbers: the European Commission’s website dedicated to ECIs indicates that since 2012, when that instrument entered into force, nine initiatives reached the stage where it was possible for the Commission to take a position on their outcome. See https://europa.eu/citizens-initiative/find-initiative/eci-lifecycle-statistics_en. 3 Judgment of 19 December 2019, Puppinck and Others v Commission (C‑418/18 P, EU:C:2019:1113, ‘judgment in Puppinck’, paragraph 70). 4 OJ 2011 L 65, p. 1. That regulation was replaced by Regulation (EU) 2019/788 of the European Parliament and of the Council of 17 April 2019 on the European citizens’ initiative (OJ 2019 L 130, p. 55) (‘the 2019 ECI Regulation’) which, pursuant to Article 28 thereof, applies, in principle, as of 1 January 2020, while the ECI at issue in the present case was registered on 30 April 2019. 5 Which respectively introduce the ECI as such and constitute the legal basis for the 2011 ECI Regulation. 6 See recital 1 of Commission Decision (EU) 2019/721 of 30 April 2019 on the proposed citizens’ initiative entitled ‘Cohesion policy for the equality of the regions and sustainability of the regional cultures’ (OJ 2019 L 122, p. 55) (‘the contested decision’). See also judgment of 7 March 2019, Izsák and Dabis v Commission (C‑420/16 P, EU:C:2019:177, ‘the Court’s judgment in Izsák and Dabis v Commission’, paragraph 9). 7 Recital 2 of the contested decision. See also judgment of 10 May 2016, Izsák and Dabis v Commission (T‑529/13, EU:T:2016:282, ‘the General Court’s judgment in Izsák and Dabis v Commission’, paragraph 3). 8 Regulation (EC) No 1059/2003 of the European Parliament and of the Council of 26 May 2003 on the establishment of a common classification of territorial units for statistics (NUTS) (OJ 2003 L 154, p. 1). As follows from Article 1 of that regulation, its purpose is to establish a common statistical classification of territorial units, referred to as ‘NUTS’, so as to enable the collection, compilation and dissemination of harmonised regional statistics within the European Union. 9 The Court’s judgment in Izsák and Dabis v Commission, paragraphs 11 and 56. See, for a fuller description of that additional information, the General Court’s judgment in Izsák and Dabis v Commission, paragraphs 3 and 5 to 8. The full content of the required information and additional information can be accessed at https://europa.eu/citizens-initiative/initiatives/details/2019/000007_en. 10 Decision C(2013) 4975 final. The grounds for the rejection of the registration are set out in paragraph 12 of the Court’s judgment in Izsák and Dabis v Commission. See also the General Court’s judgment in Izsák and Dabis v Commission, paragraph 9. 11 The General Court’s judgment in Izsák and Dabis v Commission referred to above in footnote 7. 12 The Court’s judgment in Izsák and Dabis v Commission referred to in footnote 6 above. 13 As follows from paragraph 64 of the General Court’s judgment in Izsák and Dabis v Commission, the initial ‘rejection’ decision stated that the list of handicaps that may affect various regions and that, in short, may be the subject of the EU cohesion policy, given in the third paragraph of Article 174 TFEU, is exhaustive (and, as I understand it, thus does not include the specific features of the ‘minority regions’ identified by the organisers of the ECI at issue as the source of the concerns to be addressed). In contrast to that, the Court of Justice stated that that list is not exhaustive but indicative. See the Court’s judgment in Izsák and Dabis v Commission, paragraph 69. 14 The contested decision referred to above in footnote 6. 15 Emphasis added. 16 Judgment of 10 November 2021, Romania v Commission (T‑495/19, EU:T:2021:781). 17 To recall, Article 5(2) TEU states that ‘under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States’. 18 See, for example, Dougan, M., ‘What are we to make of the citizens’ initiative?’, Common Market Law Review, Vol. 48, Issue 6, 2011, at p. 1839. 19 Article 2(1) and Article 7(1) of the 2011 ECI Regulation and Article 3(1)(a) of the 2019 ECI Regulation. 20 See, to that effect, Article 10(1)(c) of the 2011 ECI Regulation and Article 15(2) of the 2019 ECI Regulation. See also judgment in Puppinck, paragraph 70. For an example of a communication of the Commission’s political and legal conclusions, see the Communication from the Commission on the European Citizens’ Initiative ‘Minority SafePack – one million signatures for diversity in Europe’, COM(2021) 171 final, point 3, pp. 18 to 21. 21 Article 6(3)(c) of the 2019 ECI Regulation. Emphasis added. 22 Article 6(4) of the 2019 ECI Regulation. 23 I recall that the ECI at issue was registered on 30 April 2019, while the 2019 ECI Regulation applies, pursuant Article 28 thereof, and for what is relevant, as of 1 January 2020. 24 Article 4(2)(b) of the 2011 ECI Regulation. 25 Commission Decision (EU) 2017/599 of 22 March 2017 on the proposed citizens’ initiative entitled ‘EU Citizenship for Europeans: United in Diversity in Spite of jus soli and jus sanguinis’ (OJ 2017 L 81, p. 18); Commission Decision (EU) 2017/652 of 29 March 2017 on the proposed citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’ (OJ 2017 L 92, p. 100); Commission Decision (EU) 2017/877 of 16 May 2017 on the proposed citizens’ initiative entitled ‘Let us reduce the wage and economic differences that tear the EU apart!’ (OJ 2017 L 134, p. 38); Commission Decision (EU) 2017/1002 of 7 June 2017 on the proposed citizens’ initiative entitled ‘Stop extremism’ (OJ 2017 L 152, p. 1); Commission Decision (EU) 2017/1254 of 4 July 2017 on the proposed citizens’ initiative entitled ‘Stop TTIP’ (OJ 2017 L 179, p. 16); Commission Decision (EU) 2018/1222 of 5 September 2018 on the proposed citizens’ initiative entitled ‘End the Cage Age’ (OJ 2018 L 227, p. 7); Commission Decision (EU) 2018/1471 of 19 September 2018 on the proposed citizens’ initiative entitled ‘STOP FRAUD and abuse of EU FUNDS – by better control of decisions, implementation and penalties’ (OJ 2018 L 246, p. 46); Commission Decision (EU) 2019/435 of 12 March 2019 on the proposed citizens’ initiative entitled ‘Housing for All’ (OJ 2019 L 75, p. 105); and Commission Decision (EU) 2019/569 of 3 April 2019 on the proposed citizens’ initiative entitled ‘Respect for the rule of law within the European Union’ (OJ 2019 L 99, p. 39). 26 The 2011 ECI Regulation remained in force between 1 April 2012 and 31 December 2019. The Commission’s website dedicated to ECIs lists 70 registrations made during that period. 27 The exception concerns Commission Decision (EU) 2017/877 of 16 May 2017 on the proposed citizens’ initiative entitled ‘Let us reduce the wage and economic differences that tear the EU apart!’ (OJ 2017 L 134, p. 38), which uses a slightly different wording. 28 During the first few years of operation of the ECI, the content of the registration decisions was not organised into provisions. Instead, those decisions took the form of a letter addressed to the respective organisers. 29 See https://europa.eu/citizens-initiative/initiatives/details/2017/000004_en. That initiative is one of the nine ECIs on which the Commission has taken a position on the outcome. See above, footnotes 2 and 20. 30 Decision C(2013) 5969 final of 13 September 2013. 31 Judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission (T‑646/13, EU:T:2017:59, paragraphs 27, 28 and 34). 32 Commission Decision (EU) 2017/652 of 29 March 2017 on the proposed citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’ (OJ 2017 L 92, p. 100). 33 Judgment of 24 September 2019, Romania v Commission (T‑391/17, EU:T:2019:672, paragraph 58). 34 Judgment of 20 January 2022, Romania v Commission (C‑899/19 P, EU:C:2022:41. 35 I note that in its judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission (T‑646/13, EU:T:2017:59), the General Court observed, in essence, in paragraph 29, that the shortcomings as regards the Commission’s obligation to state reasons held true ‘even assuming that the position expressed by the Commission on the substance, according to which a proposed ECI, cannot, whatever its content, be registered if it is deemed in part inadmissible …, is well founded’. 36 Paragraph 115 of the judgment under appeal. 37 Referring more specifically to the Court’s judgment in Izsak and Dabis v Commission, referred to in footnote 6 and point 17 above. 38 The General Court concluded that paragraph by stating that ‘Romania’s assertion that the existence of “reservations” in the Commission’s assessment indicates the existence of doubts and questions on the part of the Commission … is not only unsubstantiated, but also ineffective, in so far as, as has already been noted, the existence of such doubts and questions should not prevent the Commission from registering the proposed ECI at issue’. I note that that statement relates to the arguments raised by Romania within the first plea of the single ground of its appeal and, as such, is not addressed by Romania in the context of the second plea. 39 Although Romania does not expand on that argument, I understand it as referring to what it had emphasised in the proceedings which led to the judgment under appeal, namely that the ECI at issue had suggested a reconfiguration of the statistical system provided for in Regulation No 1059/2003 (referred to above in footnote 8), which would take into account the ethnic, religious, linguistic and cultural criterion. Judgment under appeal, paragraph 97. 40 Judgment of 12 September 2017, Anagnostakis v Commission (C‑589/15 P, EU:C:2017:663, paragraph 35) and, to that effect, the Court’s judgment in Izsák and Dabis v Commission, paragraph 54. See also recital 10 of the 2011 ECI Regulation whose last sentence provides that ‘the Commission should deal with registration in accordance with the general principles of good administration’. On that matter, see Opinion of Advocate General Mengozzi in Izsák and Dabis v Commission (C‑420/16 P, EU:C:2018:816, point 18 and the case-law cited). 41 Emphasis added. 42 Compare also the description of these additional elements in the Court’s judgment in Izsák and Dabis v Commission, paragraph 11, with the one in the General Court’s judgment in Izsák and Dabis v Commission, paragraphs 5 to 8. 43 See point 48 above. 44 Judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission (T‑646/13, EU:T:2017:59, paragraph 29). 45 I recall that pursuant to established case-law, ‘in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part’. See, for example recently, judgment of 13 July 2023, Mensing (C‑180/22, EU:C:2023:565, paragraph 22 and the case-law cited). 46 Dougan, M., ‘What are we to make of the citizens’ initiative?’, Common Market Law Review, Vol. 48, Issue 6, 2011, at p. 1840. See also, to that effect, Opinion of Advocate General Mengozzi in Izsák and Dabis v Commission (C‑420/16 P, EU:C:2018:816, point 36). 47 Opinion of Advocate General Mengozzi in Izsák and Dabis v Commission (C‑420/16 P, EU:C:2018:816, points 38 and 57). 48 See also Article 15(2) of the 2019 ECI Regulation. See also paragraphs 101 to 105 of the judgment under appeal. 49 Judgment in Puppinck, paragraph 70, quoted in point 1 of the present Opinion, as well as paragraphs 57 to 65 and the case-law cited. See also Opinion of Advocate General Bobek in Puppinck and Others v Commission (C‑418/18 P, EU:C:2019:640, points 34 to 42). 50 See the wording that the Court used in its judgment of 20 January 2022, Romania v Commission (C‑899/19 P, EU:C:2022:41, paragraph 71). 51 See the Court’s judgment in Izsák and Dabis v Commission, paragraphs 57 to 60. More specifically, the Court disapproved the General Court’s findings to the effect that the organisers of the ECI at issue failed to provide ‘evidence that the implementation of the EU cohesion policy … endangered the specific characteristics of national minority regions’ and to show ‘that the specific ethnic, cultural, religious or linguistic characteristics of national minority regions could be regarded as a severe and permanent demographic handicap within the meaning of the third paragraph of Article 174 TFEU’. 52 See the Court’s judgment in Izsák and Dabis v Commission, paragraph 62. 53 The Court’s judgment in Izsák and Dabis v Commission, paragraph 53 and the case-law cited. 54 Emphasis added. 55 See also Green Paper on a European Citizen’s Initiative, COM(2009) 622 final, p. 3. 56 See, to that effect, Report from the Commission to the European Parliament and the Council on the application of Regulation (EU) No 211/2011 on the citizens’ initiative, COM(2018) 157 final, p. 2. Also, when discussing the aspects in need of improvement, the Commission noted, in the proposal having led to the 2019 ECI Regulation, that it ‘ha[d] implemented … a series of non-legislative measures to facilitate the use of the [ECI] instrument by organisers and citizens … including the possibility of partial registration of initiatives’. Proposal for a Regulation of the European Parliament and of the Council on the European citizens’ initiative, COM(2017) 482 final, p. 3, see also p. 10. 57 Judgment of 24 September 2019, Romania v Commission (T‑391/17, EU:T:2019:672, paragraph 90, read in combination with judgment of 3 February 2017, Minority SafePack – one million signatures for diversity in Europe v Commission (T‑646/13, EU:T:2017:59, paragraphs 14, 21, 28 and 29). 58 Recital 19 of the 2019 ECI Regulation states, that ‘it is appropriate to partially register an initiative in cases where only part or parts of the initiative meet the requirements for registration’ so as to ‘ensure that as many initiatives as possible are registered’. 59 It is true that under previous practice, a partial registration did not appear to go hand in hand with a subsequent adaptation of the submitted text, but that shortcoming now appears to be addressed in Article 6(5) of the 2019 ECI Regulation. See also, to that effect, Athanasiadou, N., ‘The European citizens’ initiative: Lost in admissibility?’ Maastricht Journal of European and Comparative Law, Vol. 26, Issue 2, 2019, at p. 269. 60 See also paragraphs 117, 125 and 129 of the judgment under appeal. 61 As stated in Article 1(2) of the contested decision, see point 19 above. 62 According to the information on the Commission’s website dedicated to ECIs, the collection of the necessary support appears to have been concluded and the signatures are in the process of being verified. See https://europa.eu/citizens-initiative/initiatives/details/2019/000007_en.