If you thought that life, rule of law and respect for democracy were staples of the European Union, the Opinion by the Advocate General in the Grand Chamber case of ‘One of Us’ against the European Commission may make you think otherwise. Last Monday (29 July), the Advocate General issued his much-anticipated Opinion in the case of Puppinck and Others v. European Commission, suggesting that the European Commission had a nearly unfettered discretion in rejecting pro-life legislative proposals based on political ideology alone. The case dealt with a legal challenge brought by the ‘One of Us’ Federation contesting the European Commission’s rejection of its successful European Citizen’s Initiative (ECI).
What is ‘One of Us’?
When Europe faced its constitutional crisis in 2005, it created the ECI as part of the Treaty of Lisbon to allow citizens a direct means of participating in the democratic and legislative process. If more than 1 million European citizens lent their support, within a year, to a proposed legislative initiative that fell within the competency of the European Union, the European Commission would then be obliged to send the proposal to the European Parliament and begin the legislative process towards possible adoption as a new EU law.
This is exactly what was done by the ‘One of Us’ ECI. In fact, it far exceeded the thresholds set by the EU regulation for ECI’s becoming the most supported ECI in European Union history with more than 1.7 million certified signatures.
The ‘One of Us’ ECI, supported by Christian Concern, called on the European Union to respect the sanctity of life from conception, proposing legislation which would end European Union funding of research which required the destruction of the human embryo, as well as prohibiting European funds supporting abortion or abortion advocacy abroad.
The court case
Before the introduction of the ECI mechanism, the only means of introducing new legislation at the European level was either by direct initiation by the European Commission, or by way of being proposed to the European Commission by the European Parliament or the European Council. The ECI added a third way of introducing legislation, that being through the power of the people. Given the importance of this power, the EU set an incredibly high threshold for introducing legislation through this new mechanism. In fact, only 4 ECIs have been successful in the history of the mechanism.
It was therefore a shock to the ‘One of Us’ organisers when their successful ECI was rejected by the Commission purely on ideological reasons. In other words, the Commission very much supports abortion. It supports abortion so much in fact, that it was willing to make the entire ECI mechanism dead letter in order to avoid presenting the successful ECI to the Parliament to begin the legislative process.
‘One of Us’, represented by human rights barrister Paul Diamond, and the Christian Legal Centre’s Roger Kiska, filed a case to the Court of Justice challenging the proposition that the Commission had unfettered discretion to reject the voices of 1.7 million EU citizens solely on ideological grounds. The General Court, on 23 April 2018, rejected the claim, holding that the European Commission enjoys a near monopoly on initiating new legislation and therefore had the discretion to reject the successful ECI.
An appeal was brought by ‘One of Us’ on 26 June 2018, with an oral hearing being held before a 15-judge Grand Chamber on 25 March 2019. As part of the EU Court’s procedure, an Advocate General, siting with the judges, issues a non-binding Opinion which assists the Court in its deliberations. This opinion was delivered on 29 July 2019 and called upon the Grand Chamber to uphold the ruling of the General Court.
While not binding, the Court of Justice rarely departs from the opinions of its Advocate Generals. Roger Kiska, commenting on the Advocate General’s Opinion, voiced his concern with his findings: “The suggestion that the European Union has unfettered discretion to reject the most supported ECI in history based purely on the fact that the Commission holds to an opposing political ideology signals the end of the ECI as an authentic tool of democratic participation.”
Kiska warned: “there is a genuine dissatisfaction among EU citizens stemming from the perceived smugness of the Commission that needs to be addressed before Brexit starts being replicated in other member states.”
The Grand Chamber is set to make its final ruling in the case in early autumn on a yet to be disclosed date.
Photo by Denis Simonet