European Citizens’ Initiative against embryo research: AG’s Opinion in Puppinck

Advocate General Bobek has issued his Opinion in Puppinck and Others v Commission  [2019] EUECJ C-418/18P O.

Background

The European Citizens’ Initiative (ECI) is a mechanism introduced by the Treaty of Lisbon to promote the participation of citizens in the democratic life of the European Union: Regulation (EU) No 211/2011 (3) establishes the legislative framework for the ECI [3]. Mr Puppinck and the other appellants are the citizens’ committee of Uno di noi (‘One of Us’). The purpose of Uno di noi is to secure legislation that would end EU funding of research involving the destruction of the human embryo and prohibit EU funds from being used to support abortion or abortion advocacy abroad.

Uno di noi was registered by the European Commission as an ECI, having obtained more than the one million signatories necessary to reach the relevant threshold for submission to the Commission – one of only four ECIs, to date, to have attained the required number of signatures [4]. There was a hearing at the European Parliament to discuss the proposal of Uno di noi, but the Commission adopted a Communication (“the Communication”) in which it explained that it had decided not to take any action in pursuance of its aims [1].

In AG Bobek’s view, the case raises two important questions of principle. First, is the Commission obliged to submit any concrete legislative proposals following a successful European Citizens’ Initiative? Second, what standard of judicial review is to be applied when reviewing the position taken by the Commission following a successful ECI? [4].

By an application of 25 July 2014, the Appellants sought the annulment of the Communication and, in the alternative, the annulment of Article 10(1)(c) of the ECI Regulation [19]; however, by order of 26 November 2015, the General Court upheld a plea of inadmissibility because the action had been brought after the expiry of the time limit laid down in Article 263 TFEU [20]. With regard to the Communication, the application raised five grounds of annulment. The Appellants alleged:

  1. infringement of Article 10(1)(c) of the ECI Regulation on account of the Commission’s failure to submit a proposal for a legal act in response to the ECI;
  2. alternatively, that that failure amounted to an infringement of Article 11(4) TEU;
  3. that Article 10(1)(c) of the ECI Regulation had been infringed because the Commission had not set out separately, in the Communication, its legal and political conclusions on the ECI;
  4. that the Commission had breached its obligation to state reasons; and
  5. that the Commission had committed a number of errors of assessment [21].

The Appellants have petitioned the CJEU to set aside the judgment of the General Court, to annul the Commission’s Communication and to order the Commission to pay the costs of the appeal and of the hearing at first instance [23].

Advocate General Bobek’s Opinion

On the first and second grounds, AG Bobek concludes that the ECI was not established in order to bypass the existing legislative process, but as a tool to fuel that process. It creates an institutional mechanism to channel citizens’ political input towards the EU institutions – but the institutions remain in charge of the legislative process, “including the launching of it” [76]. It is not binding on the institutions [79], and the appellants have failed to demonstrate that the General Court’s interpretation of Article 11(4) TEU and of the ECI Regulation is contrary to the (properly defined) objective or the effet utile of the ECI mechanism [81]. The operative part of the judgment under appeal remains well-founded and the second ground of appeal must also be rejected as ineffective [107].

As to the third ground, the Commission’s decision contained in the Communication “rests predominantly on an assessment of a political nature”, and AG Bobek does not see how such an inherently political decision can be subject to judicial review “without transgressing the boundaries imposed by the principle of institutional balance, in particular as between the EU executive and EU Courts” [126]:

“[A] limited standard of review is necessitated by the political latitude in the power of initiative of the Commission, which intrinsically involves reconciling divergent interests and selecting policy options. That latitude also follows from the political nature of the core assessment in the Commission’s communication of how and whether to follow up on successful ECIs, as part as its power of initiative. EU Courts cannot substitute the political assessment made by the Commission, which must inform the Commission’s decision whether to trigger the decision-making process by exercising its power of initiative” [127: emphasis added].

As to the fourth, he disagrees with the contention that the General Court’s judgment was based on “manifest errors of assessment” [146 & 147].

As to the fifth, he rejects the contention that “the judgment under appeal contains an error of law in its paragraph 156, where it was held that there was no need to address the argument on whether the human embryo is a human being” [148]. The argument

“boils down to claiming that the Commission should not have construed the ECI as requiring only what was specifically asked for (the three concrete legislative proposals in the annex), but should also have construed the subject matter of the ECI as a specific request to adopt an explicit legal position on the human nature of embryos” [153].

He disagrees: “in a nutshell, the Commission is, in fact, being reproached for not construing, in addition to the specific, clearly stated objectives of the ECI, a further objective drawn from the title of the ECI” [159].

AG Bobek proposes that the Court dismiss the appeal and order the appellants to bear the costs of both sides [164].

Comment

The usual caveat applies: an Advocate General’s Opinion is just that – an opinion – and not binding on the Court. However, it is relatively rare for the Court to disagree with the AG: see Measuring the Influence of the Advocate General on the Court of Justice of the European Union: Correlation or Causation? on the EU Law blog.

Cite this article as: Frank Cranmer, "European Citizens’ Initiative against embryo research: AG’s Opinion in Puppinck" in Law & Religion UK, 7 August 2019, https://lawandreligionuk.com/2019/08/07/european-citizens-initiative-against-embryo-research-ags-opinion-in-puppinck/

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