Tuesday, March 20, 2012


Courtesy of the European Parliament's Twitter feed, I was informed that the PETI Committee had decided to declare the petition against ACTA admissible. Despite being an EU lawyer by training, I have to admit that that one made me do a double take. They declared WHAT admissible? WHO declared something admissible? In my defence, admissibility is usually something for courts and lawsuits. Petitions, on the other hand, are usually something that is imagined as low-threshold and lawyer-free. But look at what the Treaties say:
Article 227
(ex Article 194 TEC)
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other citizens or persons, a petition to the European Parliament on a matter which comes within the Union’s fields of activity and which affects him, her or it directly.
This provision contains at least three reasons why a petition might not be admissible: The petitioner might not be an EU citizen, the petition might not be on a matter within the competences of the EU and the petitioner might not be directly affected by the subject matter of the petition.

These first two I do not care about very much. I would avoid like the plague any suggestion that a failure to meet those requirements results in anything as technical sounding as "inadmissibility", but it is clear that the EP can't be in the business of responding in detail to petitions by Chinese residents complaining about the Slovakian education system.

Direct concern, on the other hand, is a big, big problem. The issue is that direct concern is a doctrine from EU procedural law under the old art. 230 EC. In its new version, the provision allowing EU citizens to sue to have EU legal acts annulled reads:
Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
(Feel free to ignore the part where you're supposed to sue the Act rather than the EU Institutions that enacted it.)

When I took EU procedure in undergraduate, we had great fun studying the meaning of the bolded words, as discussed in such cases as Plaumann, UPA and Jégo-Quéré. But in so doing, we all understood that we were having lawyer-fun. Normal people do not tend to find this kind of thing the least bit amusing. Do we really expect EU citizens and residents to reflect on this before submitting a petition?
43. The Court's case-law shows that, for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules (see to that effect, in particular, International Fruit Company, cited above, paragraphs 23 to 29, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 25 and 26, Case113/77 NTN Toyo Bearing Company and Others v Council [1979] ECR 1185, paragraphs 11 and 12, Case 118/77 ISO v Council [1979] ECR 1277, paragraph 26, Case 119/77 Nippon Seiko and Others v Council and Commission [1979] ECR 1303, paragraph 14, Case 120/77 Koyo Seiko and Others v Council and Commission [1979] ECR 1337, paragraph 25, Case 121/77 Nachi Fujikoshi and Others v Council [1979] ECR 1363, paragraph 11, Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 31, Case 333/85 Mannesmann-Röhrenwerke and Benteler v Council [1987] ECR 1381, paragraph 14, Case 55/86 Arposol v Council [1988] ECR 13, paragraphs 11 to 13, Case 207/86 Apesco v Commission [1988] ECR 2151,paragraph 12, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 9).
(Société Louis Dreyfus v. Commission, Case C-386/96 P, ECR-I [1998] p. 2309)

Surely the whole point of the petitions process is to create a system for complaints with as few legal hurdles as possible? So why doesn't the Treaty more clearly distinguish between the legal hurdles for an Action for Annulment and whatever non-legal hurdles they want to create for a petition? And even if the EP does not apply the CJEU's detailed jurisprudence when deciding this issue, why are we restricting the right of petition to cases where the citizen or resident is directly affected? Why shouldn't I be able to petition them to complain about the Common Agricultural Policy? It's stupid, and I should be able to petition them to let them know I feel that way.

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