Judgment — ECLI:EU:T:2016:223
Date: 2016-04-19
Language of the case: English
Court formation: First Chamber
Subject matter: Citizenship of the Union
Procedure: Action for annulment - unfounded
Origin: Belgium;Spain;France;Luxembourg;Poland

summary of the pleas relied on. Those details must be sufficiently clear to enable the defendant to prepare its defence and the Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and the sound administration of justice, it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application (see judgment of 10 May 2006 in Galileo International Technology and Others v Commission, T‑279/03, ECR, EU:T:2006:121, paragraph 36 and the case-law cited). 47 The line of argument relating to Article 352 TFEU is set out in the first plea, on the misapplication of Article 4(2)(b) of Regulation No 211/2011, where the applicants put in issue the interpretation and application of that provision and its application in the light of the legal bases proposed in the request for registration of the proposed ECI at issue. Furthermore, the substance of the applicants’ arguments, in so far as they assert that Article 352 TFEU constitutes an appropriate legal basis for the purpose of adopting an act implementing the objectives of the proposed ECI at issue, is sufficiently clear from the application, so that, as is apparent from its pleadings, the Commission was able to present its defence properly. Consequently, in so far as the third part of the first plea is founded on incorrect assessment of Article 352 TFEU, it cannot be declared inadmissible and the Commission’s contention must therefore be rejected. 48 Thirdly, it is apparent from the applicants’ line of argument that in their view the proposed ECI at issue does not manifestly fall outside the framework of the Commission’s powers flowing from Article 352 TFEU to submit a proposal for a legal act of the European Union for the purpose of implementing the Treaties. 49 To that end, the applicants maintain, first of all, that if Articles 14 TFEU and 153 TFEU were insufficient for the purpose of adopting an act whose object is that of the proposed ECI at issue, the Commission could propose legislation founded on Article 352 TFEU. Furthermore, they contend that Article 352 TFEU may be used in the context of a proposed ECI. Finally, they submit that it would be contrary to the spirit of Regulation No 211/2011 to require Union citizens to show in what way the adoption of a legal act concerning the subject matter of a proposed ECI would be necessary to attain the objectives of the Treaties. 50 As provided in Article 352 TFEU, if action by the European Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the Parliament, is to adopt the appropriate measures. 51 According to the case-law, Article 352 TFEU, which is an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of EU powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the European Union. On any view, it cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which the Treaty provides for that purpose (Opinion 2/94 of 28 March 1996, ECR, EU:C:1996:140, paragraph 30). It follows that recourse to that provision is subject to certain conditions in order to observe the demarcation of powers that is established in the Treaties and to prevent it from being called into question by the adoption of an act of secondary legislation. 52 In addition, it should be pointed out that neither Article 352 TFEU nor Regulation No 211/2011 precludes recourse to Article 352 TFEU in the context of ECIs. 53 Nevertheless, the objective of democratic participation of Union citizens underlying the ECI mechanism cannot frustrate the principle of conferred powers and authorise the European Union to legislate in a field for which no power has been accorded to it, so that the conditions set out in Article 352 EC must also be complied with in the context of a proposed ECI. Thus, the Commission has the task of establishing whether, in relation to a proposed ECI, it is manifest that it will be unable to make a proposal for a legal act founded on that provision. That is without prejudice, however, to the institutions’ assessment of the necessity of such a legal act inasmuch as that assessment may be carried out after the proposed ECI has been registered and be set out, as the case may be, in the communication provided for in Article 10(1)(c) of Regulation No 211/2011. 54 In the present case, the request for registration does not contain appropriate information for demonstrating that the conditions for recourse to Article 352 TFEU are met. Although it is apparent from the explanatory note annexed to the request for registration that the applicants set out support for their proposals relating to Articles 14 TFEU and 153 TFEU, they did not explain the reasons why recourse to Article 352 TFEU would be justified. It follows, at the most, from that annex that, if the Commission were to take the view that Article 14 TFEU does not constitute an appropriate legal basis, Article 352 TFEU should be called upon. Consequently, even though the applicants cannot be criticised for not having established in the request for registration that the act sought was necessary, they should have demonstrated, at least, that that act fell within the framework of the policies defined in the Treaties and was intended to attain an objective set out in the latter, which would have enabled the Commission to make a detailed assessment of their request that recourse be had to Article 352 TFEU for the proposed action. 55 That being so, the applicant’s objection seeking to challenge the Commission’s conclusion that Article 352 TFEU manifestly did not constitute an appropriate legal basis for the purpose of proposing a legal act designed to implement the objectives of the proposed ECI at issue cannot be successful. 56 In the light of the foregoing matters, it must be concluded that the Commission neither misconstrued Article 4(2)(b) of Regulation No 211/2011 nor made an error of law in the assessment of Articles 14 TFEU, 153 TFEU and 352 TFEU. It follows that the first plea must be dismissed in its entirety. Second plea, alleging breach of the principle of good administration 57 By the second plea, the applicants submit, in essence, that the principle of good administration results in a duty of consistency requiring similar cases to be dealt with in the same way unless any deviation is justified and that the Commission breached that duty by refusing to register the proposed ECI at issue even though it had registered other proposed ECIs. In the applicants’ submission, by registering previous proposed ECIs, the Commission established a practice that, in cases where the relevance of a legal basis is doubtful, proposed ECIs are registered in order to begin a dialogue between the citizens and the institutions, and it interpreted the condition set out in Article 4(2)(b) of Regulation No 211/2011 in the light of that objective. The proposed ECI at issue and the ECI entitled ‘Water and sanitation are a human right’ are, moreover, very similar in the light both of their respective objectives and of the proposed legal bases, and, by virtue of the principle of consistency, registration of the former should not have been refused. 58 The Commission contests the applicants’ arguments. 59 It should be pointed out at the outset that the applicants expressly confirmed in response to a question from the Court at the hearing that, by the present plea, they are relying on breach of the duty of consistency as a component of the principle of good administration and not of the principle of equal treatment. 60 It should be recalled in this connection that, in accordance with settled case-law, the institutions must exercise their powers in accordance with the general principles of EU law, such as the principle of equal treatment and the principle of good administration, and that, regard being had to those principles, they must take into account the decisions already taken in respect of similar applications and consider with especial care whether they should decide in the same way or not. The way in which the principle of good administration is applied must nevertheless be consistent with respect for legality (see, by analogy, judgments of 10 March 2011 in Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, ECR, EU:C:2011:139, paragraphs 73 to 75 and the case-law cited, and of 17 January 2013 in Gollnisch v Parliament, T‑346/11 and T‑347/11, ECR, EU:T:2013:23, paragraph 109). 61 In the present case, as is apparent from examining the first plea, the Commission was correct in finding in the contested decision that the proposed ECI at issue manifestly fell outside the framework of its powers to submit a proposal for a legal act. Therefore, since it is established that in this instance the Commission applied Article 4(2)(b) of Regulation No 211/2011 correctly, it is clear from the case-law cited in paragraph 60 above that the legality of the contested decision cannot be called into question merely because a certain decision-making practice, assuming it to be established, is said not to have been followed by the Commission. 62 It follows that the second plea must be dismissed. Third plea, alleging a failure to state reasons 63 The applicants contend that the contested decision infringes the obligation to state reasons laid down in Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union and essentially put forward three objections in this regard. First, they submit that the reasons stated in the contested decision are not sufficient in the light of the refusal to regard Article 352 TFEU as an appropriate legal basis. Secondly, they complain that the Commission did not set out the reasons justifying the refusal of registration, even though previous similar proposals had been registered. Thirdly, they contend that the Commission had to state reasons for choosing to apply Article 4(2) of Regulation No 211/2011 strictly to the request for registration of the proposed ECI at issue. 64 The Commission contests the applicants’ arguments. 65 First, as regards the second and third objections, it should be recalled that, in accordance with well-established case-law, it is necessary to distinguish the obligation to state reasons as an essential procedural requirement, which may be raised in a plea that inadequate or even no reasons are stated for a decision, from review of the merits of the reasons stated, which falls within the review of the act’s substantive legality and requires the court to determine whether the grounds on which the act is founded are vitiated by an error (judgment in Commission v Sytraval and Brink’s France, cited in paragraph 43 above, EU:C:1998:154, paragraph 67). The two reviews differ in nature and give rise to separate assessments by the General Court (judgment in Commission v Sytraval and Brink’s France, cited in paragraph 43 above, EU:C:1998:154, paragraphs 66 to 68). 66 In the present case, by the second and third objections in the third plea the applicants raise the arguments falling within the substantive assessment of the contested decision, which were examined and rejected in the context of the first and second pleas. Those contentions cannot alter the scope of the Commission’s obligation to state reasons. 67 Consequently, the Court cannot examine those objections when reviewing whether the obligation to state reasons was complied with. In a plea based on a failure to state reasons or a lack of adequate reasons, objections and arguments which seek to challenge the merits of the contested decision at issue must be regarded as irrelevant (judgment of 1 July 2009 in Operator ARP v Commission, T‑291/06, ECR, EU:T:2009:235, paragraph 48). 68 Secondly, as regards the first objection, it should be recalled first of all that, in accordance with settled case-law, the purpose of the obligation, set out in Article 296 TFEU, to state the reasons for an individual decision is to provide the person concerned with sufficient information to determine whether the decision is well founded or whether it is vitiated by a defect which may make it possible for its validity to be contested, and to enable the EU judicature to review its lawfulness (judgments of 18 September 1995 in Tiercé Ladbroke v Commission, T‑471/93, ECR, EU:T:1995:167, paragraph 29, and of 27 September 2012 in J v Parliament, T‑160/10, EU:T:2012:503, paragraph 20). 69 The second subparagraph of Article 4(3) of Regulation No 211/2011, under which the Commission is to inform the organisers of the reasons for refusal, gives specific expression to that obligation to state reasons as far as ECIs are concerned. 70 Furthermore, it is likewise settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the nature of the measure at issue. Thus, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure and the nature of the reasons given. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context (order of 14 November 2013 in J v Parliament, C‑550/12 P, EU:C:2013:760, paragraph 19). 71 Finally, it is also clear from well-established case-law that the Commission is not obliged, in stating the reasons for its decisions, to adopt a position on all the arguments relied on by the parties concerned during the administrative procedure. It is sufficient if it sets out the facts and legal considerations having fundamental importance in the context of the decision (judgment of 11 January 2007 in Technische Glaswerke Ilmenau v Commission, C‑404/04 P, EU:C:2007:6, paragraph 30; see also judgment of 29 June 1993 in Asia Motor France and Others v Commission, T‑7/92, ECR, EU:T:1993:52, paragraph 31 and the case-law cited). 72 In the present case, the refusal to register the proposed ECI at issue is an action that may impinge upon the very effectiveness of the right of citizens to submit an ECI that is enshrined in the first paragraph of Article 24 TFEU. Consequently, such a decision must clearly disclose the grounds justifying the refusal. 73 Indeed, a citizen who has submitted a proposal for an ECI must be able to understand the reasons for that refusal of registration. It is incumbent on the Commission when it receives a proposal for an ECI to appraise it and also to give reasons for any refusal to register it, given the effect of such a refusal on the effective exercise of the right enshrined in the Treaty. That follows from the very nature of this right which, as is pointed out in recital 1 of Regulation No 211/2011, is intended to reinforce citizenship of the Union and enhance the democratic functioning of the European Union through the participation of citizens in its democratic life (judgment of 30 September 2015 in Anagnostakis v Commission, T‑450/12, ECR, under appeal, EU:T:2015:739, paragraph 26). 74 It is apparent from the contested decision that the Commission specifically explained the reasons why Articles 14 TFEU and 153 TFEU could not constitute appropriate legal bases. On the other hand, the contested decision does not include any specific reasoning as regards Article 352 TFEU. However, as the Commission correctly points out, it is apparent, admittedly implicitly, but necessarily, from the contested decision that it considered that Article 352 TFEU, like other provisions of the Treaties, was not an appropriate legal basis for the purpose of adopting an act implementing the objectives of the proposed ECI at issue. 75 It is true that, in accordance with the case-law, the statement of reasons for a measure is intended to disclose in a clear and unequivocal fashion the reasoning of the measure’s author in order to provide its addressee with the information enabling him to determine whether it is well founded or whether it may be vitiated by a defect that justifies contesting its validity, and in order to enable the EU judicature to review its lawfulness. 76 However, it should also be borne in mind that the scope of that obligation depends on a number of factors. Thus, it is not necessary for the reasoning to go into all the relevant facts and points of law, but only the fundamental factors underlying the decision, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU depends on the nature of the measure at issue and the context in which it has been adopted. 77 In the present case, the request for registration of the proposed ECI at issue does not mention any factor capable of justifying recourse to Article 352 TFEU. As the Commission correctly points out, although it is apparent from the explanatory note that the applicants supported their request pursuant to Articles 14 TFEU and 153 TFEU with a number of factors, they did not explain at all how recourse to Article 352 TFEU would be justified. 78 Given that recourse to Article 352 TFEU is subject to strict conditions, relating in particular to the necessity for action within the framework of the policies defined in the Treaties to attain an objective set out in the latter, the applicants should, at least, have stated how the proposed ECI at issue is covered by an objective set out in the Treaties in order to enable the Commission to make a detailed assessment of their request in that regard. If the conditions for recourse to Article 352 TFEU are not met, that provision does not constitute an appropriate legal basis and the condition laid down in Article 4(2)(b) of Regulation No 211/2011 is not satisfied. 79 It follows that, having regard to the context and in the light of the absence, in the request for registration of the proposed ECI at issue, of any, even brief, particulars regarding the conditions for applying Article 352 TFEU in the context of the proposed ECI at issue, the implicit reasoning relating to that provision must be regarded as sufficient and the first objection in the third plea must be rejected. 80 In the light of all the foregoing matters, it must be concluded that the Commission did not infringe its obligation to state reasons and that, accordingly, the third plea and thus the action must be dismissed. Costs 81 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay, in addition to their own costs, the costs incurred by the Commission, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action; 2. Orders Bruno Costantini and the other applicants, whose names are set out in the annex, to pay the costs. Kanninen Pelikánová Buttigieg Delivered in open court in Luxembourg on 19 April 2016. [Signatures] Annex Robert Racke, residing in Lamadelaine (Luxembourg), Pietro Pravata, residing in Beyne-Heusay (Belgium), Zbigniew Gałązka, residing in Łódź (Poland), Justo Santos Domínguez, residing in Leganés (Spain), Maria Isabel Lemos, residing in Mealhada (Portugal), André Clavelou, residing in Vincennes (France), Citizens’ Committee ‘Right to Lifelong Care: Leading a life of dignity and independence is a fundamental right!’, established in Brussels (Belgium). * Language of the case: English.