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Court of Justice of the European Union: Recognition of Treaty Negotiations as a Legal Act, Validation of Initiative to Stop TTIP

(May 31, 2017) On May 10, 2017, the General Court of the Court of Justice of the European Union (CJEU), which, inter alia, deals with actions for annulment of European Commission decisions brought by individuals, businesses, or governments of the EU Member States, reviewed the case M. Efler and Others v. the European Commission.  The Court agreed with the request of the plaintiff and annulled a European Commission decision denying the registration of the European Citizens’ Initiative (ECI) called Stop TTIP. (CJEU, Judgment of the General Court (First Chamber) of 10 May 2017, Michael Efler and Others v European Commission, Case T-754/14 (Judgment), CURIA.)

The ECI is a procedure to secure participation of citizens in the EU legislative process introduced by the Treaty of European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). (Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, October 26, 2012 O.J. (C 326) 1, art. 11(4) & art. 24(1), respectively, EUR-LEX.)   In order to be registered and considered, an initiative, along with a detailed statement on its purposes, must be supported by the signatures of at least one million EU citizens coming from at least one quarter of all EU Member States within a 12-month period.  (Regulation (EU) 211/2011 of the European Parliament and of the Council of 16 February 2011 on the Citizens’ Initiative,  arts. 2(1) & 5(5), EUR-LEX; Commission Implementing Regulation (EU) No. 1179/2011 of 17 November 2011 Laying Down Technical Specifications for Online Collection Systems Pursuant to Regulation (EU) No 211/2011 of the European Parliament and of the Council on the Citizens’ Initiative, EUR-LEX; The European Citizens’ Initiative, EUROPA (last updated May 4, 2017).)


In July 2014, a group of citizens asked the European Commission (the EU Executive body) to register an ECI aimed at stopping negotiations of the Transatlantic Trade and Investment Partnership (TTIP) between the EU and the United States and preventing the conclusion of the Comprehensive Economic and Trade Agreement between the EU and Canada. (Transatlantic Trade and Investment Partnership, Office of the United States Trade Representative website (last visited May 19, 2017); In Focus: EU-Canada Comprehensive Economic and Trade Agreement (CETA), EUROPA (last visited May 19, 2017). The Commission refused to register the ECI, claiming that the proposed initiative fell outside the scope of art. 11(4) of the TEU because the initiative did not question an EU legal act required for the implementation of the Treaties but simply invited the Commission to submit a recommendation to the Council to repeal the Council decision authorizing the opening of the TTIP  negotiations.  The Commission claimed that Council decision granting the negotiating mandate is a preparatory act that has legal effect only for the two institutions concerned and does not modify the EU acquis.  (European Commission Communication, C(2014) 6501 final, Sept. 10, 2014, EUROPA.)

The procedure for concluding international agreements is laid down in article 218 of the TFEU.  Member States are not allowed to negotiate international agreements with non EU-countries or international organizations. It is the European Commission that submits recommendations to the Council to open negotiations, negotiates the agreement, and finally proposes to the Council a decision to conclude the negotiations.  The European Parliament is kept informed of the proceedings and, for certain types of international agreements, is requested to cast an up or down vote.  (Consolidated Version of the Treaty on the Functioning of the European Union, May 9, 2008, 2008 O.J.  115.)

The plaintiff also claimed that by refusing the ECI, the Commission violated the principle of good administrative practice as stated in article 41 of the Charter of Fundamental Rights of the European Union. (Judgment; Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1, European Parliament website.)

The General Court upheld the action and annulled the Commission decision. The Court asserted that the fundamental principle of democracy within the EU requires the interpretation of the concept of a legal act as including a decision to open negotiations for the purpose of concluding an international agreement.  (Judgment, ¶¶ 13, 30, & 34-.)  The Court also noted that the purpose of the ECI is to stimulate democratic debate within the legislative process prior to the adoption of an act.  The exercise of such an initiative cannot be considered interference with legislative procedure or an infringement on the institutional competences of the Commission.  (Id. ¶¶ 37, 42 & 45.)

Within two months of notification of the decision of the General Court, it may be appealed before the Court of Justice. The appeal must be limited, however, to points of law.  (TFEU, art. 256, supra.)

Prepared by Micaela Del Monte, Law Library Visiting Research Fellow, in collaboration with Peter Roudik, Director of Legal Research.