Case T‑529/13

Balázs-Árpád Izsák

and

Attila Dabis

v

European Commission

‛Law governing the institutions — European citizens’ initiative — Cohesion policy — National minority regions — Refusal of registration — Manifest lack of powers of the Commission — Article 4(2)(b) and (3) of Regulation (EU) No 211/2011’

Summary — Judgment of the General Court (First Chamber), 10 May 2016

Culture — Competence of the Union — Scope — Adoption of an act seeking to implement, within the framework of cohesion policy, certain guarantees so that the specific ethnic, cultural, religious or linguistic characteristics of national minority regions may be preserved — Not included

Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Conditions for registration — Proposal to be within the Commission’s competence — Finding, on first examination, that the Commission clearly lacks powers — Rejection of the proposal — No infringement of the principle of sound administration

Citizenship of the Union — Rights of the citizen — Presentation of a citizens’ initiative — Regulation No 211/2011 — Conditions for registration — Information having to accompany a proposal — Information on the subject-matter, aims and context — Optional — Consequences of sending that information — Obligation on the Commission to examine

In accordance with Article 44(1)(c) read in conjunction with Article 48(2) of the 1991 Rules of Procedure, no new plea in law may be introduced after the application has been lodged unless that plea is based on matters of law or of fact which come to light in the course of the procedure. However, a plea which constitutes an amplification of a plea previously made, either expressly or by implication, in the original application and is closely linked to it must be declared admissible. To be regarded as an amplification of a plea or a head of claim previously advanced, a new line of argumentation must, in relation to the pleas or heads of claim initially set out in the application, present a sufficiently close connection with the pleas or heads of claim initially put forward in order to be considered as forming part of the normal evolution of debate in proceedings before the Court. (see paras 32, 33)

It follows from Article 4 of Regulation No 211/2011 on the citizens’ initiative and Annex II thereto that the Commission is to consider the information communicated by the organisers in order to assess whether the proposal in dispute satisfies the conditions laid down, inter alia, in Article 4(2)(b) of that regulation. In that regard, concerning the right of the organisers to supply the information set out in Annex II to Regulation No 211/2011, to which Article 4 of the regulation refers, that information is not limited to the minimum information which, by virtue of that annex, must be provided in the register. The right under Annex II to Regulation No 211/2011 of the organisers of the proposed initiative to provide additional information concerning the subject-matter, aims and context of that proposal, and even a draft legal act of the Union, has as a corollary an obligation on the Commission to consider that information as any other information provided pursuant to that annex, in accordance with the principle of sound administration, including the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case. Consequently, irrespective even of whether the required information, provided in the register, was sufficient, for the purposes of determining whether a proposal meets the conditions for registration laid down in Article 4(2)(b) of Regulation No 211/2011, the Commission is under a duty to examine the additional information. Moreover, it is for the organisers of a proposal for a citizens’ initiative to consider, in each individual case, whether it is in their interest to exercise their right, laid down in Annex II to Regulation No 211/2011, to provide the said additional information, given the correlative obligation on the Commission to examine that information for the purposes of determining, inter alia, whether the proposal for a citizens’ initiative must be registered. However, after the organisers of a proposal in dispute have decided to exercise their right and to provide such additional information, that information must be taken into account by the Commission, without the Commission being entitled or obliged to ask itself whether or not taking that information into account is in the organisers’ interests. (see paras 47-50, 56)

It follows from the wording of Article 4(2)(b) of Regulation No 211/2011 that the Commission must carry out an initial assessment of the information at its disposal in order to determine whether the proposal for a citizens’ initiative does not manifestly fall outside the framework of its powers, given that a more exhaustive assessment is provided for in the event of registration of the proposed initiative. Article 10(1)(c) of Regulation No 211/2011 provides that, where the Commission receives a European citizens’ initiative, it is, within three months, to set out in a communication its legal and political conclusions on the initiative, the action it intends to take, if any, and its reasons for taking or not taking that action. In that regard, the Commission cannot be accused of infringing the principle of sound administration laid down by Article 41(1) of the Charter of Fundamental Rights of the European Union where it has, rightly, refused to register a citizens’ initiative not satisfying the conditions for registration laid down in Article 4(2)(b) of Regulation No 211/2011. (see paras 60, 124, 125)

See the text of the decision. (see paras 66)

It follows from a combined reading of Article 174 TFEU to 178 TFEU that the EU legislature is empowered to adopt measures which aim to promote the harmonious development of all of the European Union and, in particular, to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured regions, by paying particular attention to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions. In that regard, Articles 174 TFEU to 178 TFEU cannot constitute legal bases for adopting an act leading to a redefinition of the concept of a region, within the meaning of those provisions, by conferring a genuine status to national minority regions, without regard for the political, administrative and institutional status quo existing in the Member States concerned. Pursuant to Article 4(2) TEU, the Union must, within the framework of policy cohesion, respect the political, administrative and institutional status quo existing in the Member States. Thus, where, for the sole purposes of ensuring comparability of regional statistical data, Article 3(5) of Regulation No 1059/2003 on the establishment of a common classification of territorial units for statistics provides for regard to be had to criteria such as geographical, socio-economic, historical, cultural or environmental circumstances, that is only for the purposes of grouping, in non-administrative units of a sufficient size in terms of population, the administrative units existing in the Member States in question and with the sole aim of ensuring the comparability of the statistics relating to the level of development of those various administrative units. It follows that the EU legislature could not, without infringing Article 4(2) TEU, adopt an act which would define national minority regions, capable of benefiting from special attention within the framework of EU cohesion policy, on the basis of autonomous criteria and, therefore, without regard to the political, administrative and institutional status quo existing in the Member States in question. Moreover, even supposing that national minority regions may correspond to administrative units existing in the Member States in question or aggregations of such units, the preservation of the specific ethnic, cultural, religious or linguistic characteristics of those regions is not an aim which could justify the adoption of a legal act of the Union on the basis of Articles 174 TFEU, 176 TFEU, 177 TFEU and 178 TFEU. (see paras 69, 72, 74-77)

Under Article 2 TEU, the Union is to be founded on respect for human rights, including the rights of persons belonging to minorities. Furthermore, Article 21(1) of the EU Charter of Fundamental Rights prohibits any discrimination based on membership of a national minority. Article 6(1) TEU provides that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights, which is to have the same binding force as the Treaties, and Article 51(1) of the Charter states that its provisions are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing EU law. It follows that, in exercising their shared competency in relation to economic, social and territorial cohesion, the European Union and the Member States may not discriminate against persons and populations due to their membership of a national minority. In that regard, neither Article 2 TEU, nor Article 21(1) of the Charter of Fundamental Rights, nor any other provision of EU law aiming to prevent discrimination, inter alia, the provisions based on membership of a national minority, could, within the framework of EU cohesion policy, allow the Commission to propose a legal act of the Union seeking to prevent any gap or lag in economic development of national minority regions with the surrounding regions due to the alleged handicap of such national minority regions’ specific ethnic, cultural, religious or linguistic characteristics. More precisely, although the third paragraph of Article 174 TFEU states that the northernmost regions with very low population density and island, cross-border and mountain regions suffer from severe and permanent natural or demographic handicaps relating to their insularity, their cross-border character, their terrain, their isolation, their low or very low population density, it does not mention regions the ethnic, cultural, religious or linguistic characteristics of which differ from those of the surrounding regions. (see paras 82-84, 86)

It follows from Article 167 TFEU and, more specifically, from Article 167(2) and (5) TFEU that, within the framework of EU cultural policy and for the purposes of contributing to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore, the EU legislator is empowered to adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States, or recommendations furthering specific objectives, namely, first, improvement of the knowledge and dissemination of the culture and history of the European peoples, second, conservation and safeguarding of cultural heritage of European significance, third, non-commercial cultural exchanges and, fourth, artistic and literary creation, including in the audiovisual sector. A proposal for an EU legal act seeking to implement, within the framework of EU cohesion policy, certain guarantees so that the specific ethnic, cultural, religious or linguistic characteristics of national minority regions may be preserved does not contribute to any of the objectives of the EU cultural policy referred to in Article 167 TFEU. The preservation of national minority regions through their specific ethnic, cultural, religious or linguistic characteristics, to the extent of recognising the autonomous status of such regions, for the purposes of implementing EU cohesion policy is an objective which, first, goes well beyond merely contributing to the flowering of the cultures of the Member States, while respecting their national and regional diversity or merely bringing common cultural heritage to the fore and which, second, does not directly relate to one of the objectives specifically referred to in Article 167(2) TFEU. Neither Article 3(3) TEU, nor the first paragraph of Article 167 TFEU, nor Article 22 of the Charter of Fundamental Rights would allow the Commission to propose, within the framework of the EU cohesion policy, a legal act aiming to protect the cultural diversity represented by national minorities. (see paras 98-102)

Without prejudice to the other Treaty provisions and within the limits of the powers they assign to the Union, Article 19(1) TFEU empowers the EU legislature to adopt measures needed to combat any discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Therefore, that provision cannot constitute an appropriate legal basis to propose an EU legal act concerning national minority regions which does not aim to combat discrimination against persons and populations due to their membership of a national minority, but to prevent any gap or lag in economic development of national minority regions with the surrounding regions due to the alleged handicap of such national minority regions’ specific ethnic, cultural, religious or linguistic characteristics. (see paras 111-113)