1

On 25 July 2014, the applicants, the European Citizens’ Initiative ‘One of Us’ and the other applicants whose names appear in the annex, brought an action for annulment of Commission Communication COM(2014) 355 final of 28 May 2014 on the European Citizens’ Initiative ‘One of Us’ (‘the contested communication’) and, in the alternative, of Article 10(1)(c) of Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1).

2

Pursuant to Article 24(6) of the Rules of Procedure of the General Court of 2 May 1991, a summary of the application initiating proceedings was published in the Official Journal of the European Union of 17 November 2014 (OJ 2014 C 409, p. 45).

3

By documents lodged at the Court Registry on 6 and 9 February 2015 respectively, the European Parliament and the Council of the European Union, which were designated, with the European Commission, as defendants in the application initiating proceedings, raised a plea of inadmissibility under Article 114(1) of the Rules of Procedure of 2 May 1991.

4

By documents lodged at the Court Registry on those same dates, the Parliament and the Council applied for leave to intervene in support of the form of order sought by the Commission in the event that the action was declared inadmissible in so far as it concerned them.

5

The applications referred to in paragraph 4 above were served on the applicants, the Commission, the Parliament, as regards the Council’s application, and the Council, as regards the Parliament’s application, in accordance with Article 116(1) of the Rules of Procedure of 2 May 1991.

6

By document lodged at the Court Registry on 17 March 2015, International Planned Parenthood Federation (‘IPPF’) applied for leave to intervene in support of the forms of order sought by the Commission, the Parliament and the Council.

7

By document lodged at the Court Registry on 3 April 2015, Marie Stopes International (‘MSI’) applied for leave to intervene in support of the forms of order sought by the Commission, the Parliament and the Council.

8

The applications referred to in paragraphs 6 and 7 above were served on the applicants, the Commission, the Parliament and the Council in accordance with Article 116(1) of the Rules of Procedure of 2 May 1991.

9

By documents lodged at the Court Registry on 27 May and 2 July 2015, the applicants raised objections to the applications to intervene lodged respectively by MSI and IPPF.

10

By documents lodged at the Court Registry on 8 May and 12 June 2015, the Commission stated that it had no observations concerning the applications to intervene lodged respectively by MSI and IPPF.

11

The Parliament and the Council did not submit any observations on the applications to intervene referred to in paragraphs 6 and 7 above.

12

By document lodged at the Court Registry on 15 June 2015, MSI and IPPF informed the Court that the applicants had published MSI’s application to intervene on a website together with negative comments regarding that organisation. The two applicants for leave to intervene requested the Court, in particular, to use the means at its disposal, including an order for costs, in order to prevent future abuses of procedure of a similar nature by the applicants.

13

In the context of a measure of organisation of procedure adopted on the basis of Article 89(3)(a) of the Rules of Procedure of the General Court, the applicants were requested to submit observations on the abovementioned claims of the two applicants for leave to intervene, which they did, within the period prescribed by the Court, by document lodged on 31 August 2015.

14

In the context of a further measure of organisation of procedure adopted on the basis of Article 89(3)(a) of the Rules of Procedure of the General Court and given that the applications of MSI and IPPF to intervene had been published on the website referred to in paragraph 12 above, the applicants were requested to state whether they had provided that website with the abovementioned applications to intervene and, if that were not the case, to explain how, according to them, those documents came to be at the disposal of that website. The applicants replied, within the period prescribed by the Court, by document lodged on 17 November 2015.

15

By order of 26 November 2015, the First Chamber of the General Court dismissed the action as inadmissible in so far as it was directed against Article 10(1)(c) of Regulation No 211/2011, which had the result that the Parliament and the Council could no longer be regarded as defendants in the proceedings.

16

By decision of 30 November 2015, the President of the First Chamber of the General Court granted the Parliament and the Council leave to intervene, stating that their rights were those provided for by Article 116(6) of the Rules of Procedure of 2 May 1991.

17

In the context of a further measure of organisation of procedure adopted by the Court on the basis of Article 89(3)(a) of the Rules of Procedure, first, the Commission and, secondly, MSI and IPPF submitted observations, on 4 December and 11 December 2015 respectively, on the applicants’ reply in the document of 17 November 2015 (see paragraph 14 above).

18

Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of a case other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case.

19

It is settled case-law that the concept of an interest in the result of the case, within the meaning of that provision, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested decision and whether its interest in the result of the case is established (see order of 25 February 2003 in BASF v Commission, T‑15/02, ECR, EU:T:2003:38, paragraph 26 and the case-law cited).

20

It is apparent from the case file that IPPF is a federation which was created, under the laws of the United Kingdom, by the International Planned Parenthood Federation Act of 1977. As is apparent from Article 4 of the International Planned Parenthood Federation Act, its objectives are, first, to promote the education of peoples of the world in family planning and responsible parenthood, secondly, to preserve and protect the good health, both mental and physical, of parents, children and young people through promoting and supporting effective family planning services, thirdly, to educate people in the demographic problems of their own communities and of the world and, fourthly, to stimulate appropriate research in all aspects of human fertility and its regulation and to make known the findings of such research.

21

IPPF has stated, without being challenged in that regard, that it is made up of 152 national member organisations, called ‘Member Associations’, each of which operates within countries, across regions as well as internationally. A list of those members was attached as an annex to the application to intervene.

22

IPPF has also stated, without being challenged in that regard, that, through 65000 service points, its Member Associations provide sexual and reproductive health services including family planning, abortion, maternal and child health, and treatment, prevention and care with regard to sexually transmitted infections. IPPF has pointed out that it is an advocate of sexual and reproductive health and rights for all. It submits that, together with its members, it encourages governments and other key decision makers at national, regional and global level to promote sexual and reproductive health and rights, to adopt policies and laws in light of those concerns and to fund programmes and service delivery.

23

IPPF maintains that it should be granted leave to intervene since it is a representative association the object of which is to protect its members in cases, like the present case, raising questions of principle that are liable to affect those members.

24

According to settled case-law, intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle that are liable to affect those members (orders of 17 June 1997 in National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), ECR, EU:C:1997:307, paragraph 66; 28 September 1998Pharos v Commission, C‑151/98 P, ECR, EU:C:1998:440, paragraph 6; and 26 July 2004Microsoft v Commission, T‑201/04 R, ECR, EU:T:2004:246, paragraph 37). More particularly, an association may be allowed to intervene in a case if (i) it represents an appreciable number of undertakings active in the sector concerned, (ii) its objects include that of protecting its members’ interests, (iii) the case may raise questions of principle affecting the functioning of the sector concerned, and (iv) the interests of its members may therefore be affected to an appreciable extent by the forthcoming judgment (orders of 8 December 1993 in Kruidvat v Commission, T‑87/92, ECR, EU:T:1993:113, paragraph 14; 28 May 2004Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, ECR, EU:T:2004:164, paragraph 18; and 18 October 2012ClientEarth and International Chemical Secretariat v ECHA, T‑245/11, EU:T:2012:557, paragraph 12).

25

The Court of Justice has stated that the adoption of a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of such cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (orders in National Power and PowerGen v Commission, cited in paragraph 24 above, EU:C:1997:307, paragraph 66, and ClientEarth and International Chemical Secretariat v ECHA, cited in paragraph 24 above, EU:T:2012:557, paragraph 13).

26

In the present case, it is necessary to examine, first, whether the case may raise questions of principle affecting the sector concerned, with the result that the interests of IPPF’s members may be affected to an appreciable extent by the forthcoming judgment.

27

In that regard, IPPF submits that one of the main objectives of the citizens’ initiative at issue is to prevent the European Union’s funding of abortion and of organisations that encourage or promote abortion within and outside the European Union. It maintains that that would affect the activities of IPPF, which not only, through its Member Associations, provides abortion services, but also campaigns in favour of sexual and reproductive health and a woman’s right to choose and to access safe abortion services. It submits that, in view of this, the citizens’ initiative in question raises a serious question of principle that is liable to affect IPPF and its members.

28

IPPF states that it has an interest in the result of the case for the following three reasons.

29

In the first place, if the Court were to uphold the contested communication, this would have a direct impact on IPPF’s financial interests since that communication would provide a legal guarantee that its activities would not be subject to a blanket ban in terms of funding from the European Union. By contrast, if the action were to succeed, and the Commission were to be called upon to revise the position set out in the contested communication, IPPF would face the prospect of important sources of funding being cut off. Although the annulment of the contested communication would not have the immediate effect of curtailing the funding of IPPF and its members, such an annulment would necessarily have a direct effect on their interests in terms of renewing the discussion on their future potential funding from the European Union. Moreover, if the action were to be upheld, IPPF and its members would be forced to defend anew their mission and justify their work, incurring considerable costs.

30

In the second place, IPPF submits that the application initiating proceedings and the annexes thereto contain incorrect information concerning its activities. It maintains that if that information were repeated in the final judgment, its reputation could be affected, which could have a negative impact on its ability to raise funds. IPPF submits that it therefore has an interest in intervening, in order to correct that information and to defend its reputation.

31

In the third place, IPPF maintains that the present case raises serious questions of principle connected with the European Union’s policy on reproductive freedom. It submits that its intervention on behalf of its members would facilitate the assessment of the case within its wider context. It takes the view that, as an organisation that holds a position which diverges from that of the applicants as concerns the right to reproductive freedom, including the right to choose and to access safe abortion services, it has a direct interest in counterbalancing the applicants’ arguments.

32

The applicants opposed IPPF’s application to intervene, submitting, inter alia, that its interest in the result of the case, if any, is too indirect and uncertain.

33

In that regard, first, it must be pointed out that the objective of the citizens’ initiative in question is, in essence, that the European Union should end the financing of activities ‘which presuppose the destruction of human embryos, in particular in the areas of research, development aid and public health’. In that regard, the organisers of that initiative attached three proposals for legislative amendments as an annex to the application for registration of that initiative. It indisputably follows that the objective of the citizens’ initiative in question is at variance with the activities of IPPF and its members, inasmuch as they provide abortion services and promote family planning and sexual and reproductive rights.

34

Next, it must be borne in mind that the aim of the action in the present case is the annulment of the contested communication adopted on the basis of Article 10(1)(c) of Regulation No 211/2011, in which the Commission took the view that it was not necessary to submit to the European legislature a proposal relating to the legislative amendments proposed by the citizens’ initiative in question.

35

Article 10(1)(c) of Regulation No 211/2011 provides that the Commission, where it receives a citizens’ initiative which complies with all of the relevant procedures and conditions provided for by that regulation shall:

‘within three months, set out in a communication its legal and political conclusions on the citizens’ initiative, the action it intends to take, if any, and its reasons for taking or not taking that action.’

36

The content of Article 10(1)(c) of Regulation No 211/2011 must be read in the light of recital 1 of that regulation, which states that:

‘[… The citizens’ initiative] procedure affords citizens the possibility of directly approaching the Commission with a request inviting it to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties similar to the right conferred on the European Parliament under Article 225 [TFEU] and on the Council under Article 241 TFEU.’

37

It follows that whether the action is upheld or dismissed by the Court can affect the interests of IPPF and its members relating to the financing of their activities by the European Union only in an indirect and uncertain manner inasmuch as, by means of the contested communication, the Commission merely refuses to submit to the EU legislature a proposal for a legal act containing the legislative amendments proposed by the citizens’ initiative in question.

38

Consequently, even if the action were upheld, that could result, having regard to the least favourable scenario for IPPF and its members, only in the Commission’s submission to the EU legislature of a proposal for a legal act relating to the abovementioned amendments. However, that proposal for a legal act would be only a stage in a series of future acts and events the outcome of which would be the adoption of a legal act of the European Union prohibiting the financing of activities ‘which presuppose the destruction of human embryos’ (see, to that effect and by analogy, order of 18 May 2015 in Izsák and Dabis v Commission, T‑529/13, EU:T:2015:325, paragraph 29).

39

Likewise, contrary to what IPPF has claimed, if the Court were to uphold the contested communication that would not in any way provide IPPF and its members with a legal guarantee that their activities would not be subject to a ban in terms of funding from the European Union, since a legislative initiative to that effect could come both from the Parliament pursuant to Article 225 TFEU and from the Council pursuant to Article 241 TFEU.

40

Furthermore, it must be stated that IPPF itself admits that the possible annulment of the contested communication by the Court would not have an immediate effect on the funding of it and its members (see paragraph 29 above). The argument that that annulment would have a direct effect on the interests of IPPF and its members in terms of renewing the discussion on their future potential funding from the European Union and because they would have to defend anew their mission and their work in the context of that discussion cannot be accepted since it does not show that IPPF and its members are currently and definitely affected for the purposes of the case-law referred to in paragraph 19 above.

41

It is also necessary to reject IPPF’s claim that its intervention is justified by its interest in correcting information in the case file which would affect its reputation (see paragraph 30 above), inasmuch as that interest does not concern the subject matter and the result of the case for the purposes of the case-law referred to in paragraph 19 above. The invocation of that interest is not therefore relevant for the purposes of assessing IPPF’s interest in intervening.

42

Lastly, it must be pointed out that the present case raises, in essence, first, questions relating to whether the contested communication is challengeable for the purposes of Article 263 TFEU and, secondly, as is apparent from the pleas for annulment put forward, questions concerning the nature and the content of the Commission’s obligations under Article 10(1)(c) of Regulation No 211/2011. It follows that the ‘centre of gravity’ of the present case does not concern questions connected with the European Union’s policy on reproductive freedom and that therefore the intervention of IPPF, as an association which provides, through its members, sexual and reproductive health services and promotes the right to reproductive freedom, would not contribute to facilitating the Court’s assessment of the context of the case, for the purposes of the case-law referred to in paragraph 25 above.

43

In the light of the foregoing considerations, it must be held that, irrespective of whether IPPF is a representative association and whether its objects include that of protecting its members’ interests, those interests cannot be affected to an appreciable extent by the forthcoming judgment, for the purposes of the case-law referred to in paragraph 24 above. IPPF’s application to intervene must therefore be dismissed.

44

According to its submissions, MSI is a foundation constituted under the laws of England and Wales, which delivers sexual and reproductive health services, including a full range of methods of contraception and access to safe abortion services and post-abortion care, by means of its offices and affiliated partners in 37 countries in the world. As is apparent from its articles of association, it has a mandate not only to provide the abovementioned services, but also, inter alia, to reduce maternal mortality, to prevent poverty and distress resulting from unplanned conception and to carry out or promote research concerning the abovementioned health services.

45

In support of its application to intervene, MSI puts forward exactly the same arguments as IPPF in order to justify its interest in the result of the case (see paragraphs 27 to 31 above). More specifically, MSI submits, in the first place, that if the Court were to uphold the contested communication, that would have a direct impact on its financial interests, in the second place, that it has an interest in intervening in order to correct incorrect information, in the case file, concerning its activities and to defend its reputation and, in the third place, that its intervention would facilitate the Court’s assessment of the case within its wider context. For the reasons set out in paragraphs 33 to 42 above, it must be held that those arguments do not show that there is a direct, established and existing interest in the result of the case for the purposes of the case-law referred to in paragraph 19 above. MSI’s application to intervene must therefore be dismissed.

46

Under Article 134(1) of the Rules of Procedure, applicable to the present case pursuant to Article 144(6) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under Article 135(2) of the Rules of Procedure, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party.

47

In the present case, IPPF and MSI, in the observations which they submitted on 11 December 2015 (see paragraph 17 above), requested that the applicants should be ordered to pay the costs of IPPF and MSI relating to the applications to intervene or, at the very least, the costs that IPPF and MSI have incurred as a result of the disclosure of those applications on the internet. IPPF and MSI stated the reasons for their requests relating to the allocation of costs, maintaining that the applicants were responsible for the abovementioned disclosure and had therefore committed an abuse of procedure.

48

The applicants, although they dispute that they acted unlawfully, have not applied for costs. The Commission has also not made such an application.

49

It must be borne in mind that, according to the rules governing the treatment of cases before the General Court, parties are entitled to protection against the misuse of procedural documents (judgment of 17 June 1998 in Svenska Journalistförbundet v Council, T‑174/95, ECR, EU:T:1998:127, paragraph 135). Thus, according to Article 5(8) of the Instructions to the Registrar of the General Court, which were applicable at the time of the publication on the website, mentioned in paragraph 12 above, of the applications of IPPF and MSI to intervene, no third party, private or public, may have access to the case file or to the procedural documents without the express authorisation of the President of the General Court or, where the case is still pending, of the President of the formation of the Court that is hearing the case, after the parties have been heard, it being borne in mind that that authorisation may be granted only upon written request accompanied by a detailed explanation of the third party’s legitimate interest in inspecting the file.

50

That provision reflects a fundamental aspect of the general principle of the due administration of justice according to which parties have the right to defend their interests free from all external influences and particularly from influences on the part of members of the public (judgment in Svenska Journalistförbundet v Council, cited in paragraph 49 above, EU:T:1998:127, paragraph 136). It follows that a party who is granted access to the procedural documents of other parties is entitled to use those documents only for the purpose of pursuing his own case and for no other purpose, including that of inciting criticism on the part of the public in relation to arguments raised by other parties in the case (judgment in Svenska Journalistförbundet v Council, cited in paragraph 49 above, EU:T:1998:127, paragraph 137). That assists in ensuring that, throughout the judicial proceedings, the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity, and avoids exposing judicial activities to external pressure, albeit only in the perception of the public, and disturbing the serenity of the proceedings (see order of 25 February 2015 in BPC Lux 2 and Others v Commission, T‑812/14 R, EU:T:2015:119, paragraph 14 and the case-law cited).

51

It is apparent from the case-law that conduct contrary to the abovementioned aspect of the general principle of the due administration of justice constitutes an abuse of procedure which may be taken into account in awarding costs (see, to that effect, judgment in Svenska Journalistförbundet v Council, cited in paragraph 49 above, EU:T:1998:127, paragraphs 139 and 140).

52

Furthermore, it is important to point out that the protection accorded to the parties to judicial proceedings by reason of the abovementioned aspect of the general principle of the due administration of justice must apply to a prospective intervener before the Court. That prospective intervener takes part in the judicial activities and, on that basis, he must be entitled to the same level of protection as the parties to the proceedings as regards the possibility of defending his interests free from all external influences and particularly from influences on the part of members of the public.

53

In the present case, it is common ground that the applications of IPPF and MSI to intervene were published, in the form of electronic links to the content thereof, in articles which appeared on a website the creation of which was, according to the authors and editors of that website, ‘a way to promote a society that is based on a consistent understanding of human dignity — a dignity which accrues to all human beings, from the moment of conception until their natural death’. It must also be pointed out that those articles directly referred to the proceedings in the present case before the Court and presented the two applicants for leave to intervene in a negative light and were thus aimed at engendering in members of the public negative feelings towards those applicants for leave to intervene.

54

In reply to the Court’s question referred to in paragraph 14 above, the applicants stated that, as it seemed to them legitimate and appropriate, they had communicated all information regarding the action, including relevant documents, exclusively to those whom they represent, namely the organisations which are part of the European Citizens’ Initiative ‘One of Us’. According to the applicants, that communication may have indirectly resulted in the publication of certain documents on the internet, though that was not their intention. The applicants also stated that they have no editorial responsibility for the content of the website in question and that they had sent an email to those responsible for that website asking them to remove the electronic links to the applications of IPPF and MSI to intervene from the site.

55

In that regard, it must be pointed out that the applicants do not provide any information that makes it possible to identify the ‘organisations’ to which they refer and that that information is not apparent from the case file. Furthermore, it must, in any event, be pointed out that none of those ‘organisations’ is identified, as an applicant, in the application initiating proceedings. That application identifies, as applicants, the European Citizens’ Initiative ‘One of Us’ and the seven natural persons who, in their capacity as organisers within the meaning of Article 2 of Regulation No 211/2011, are the members of the citizens’ committee in respect of that initiative.

56

Moreover, the applicants admit that the communication to those ‘organisations’ of the applications of IPPF and MSI to intervene may have indirectly resulted in those documents being published on the internet.

57

Furthermore, it must be pointed out that, as is apparent from the website referred to in paragraph 53 above, its authors and editors affirm their support, without being affiliated with them, for a certain number of organisations and entities, including the European Citizens’ Initiative ‘One of Us’, and recommend navigating to the website of that citizens’ initiative.

58

The applicants’ claim that the publication on the abovementioned website of the applications of IPPF and MSI to intervene was not their intention does not convince the Court. The articles which appeared on that website containing links towards those applications to intervene refer expressly and extensively to the judicial proceedings in the present case, argue aggressively in favour of the view which the applicants have put forward before the Court and also contain electronic links to the applicants’ written pleadings and even passages from those written pleadings. In any event, even if it were true, that claim on the part of the applicants does not, as the Commission correctly points out in its observations referred to in paragraph 17 above, alter the fact that, by communicating to the abovementioned ‘organisations’ the applications of IPPF and MSI to intervene, the applicants objectively created the risk that the contested publication on the internet would occur.

59

In the light of those circumstances, the applicants must be regarded as not being unaware of what led to the publication on the website referred to in paragraph 53 above of the abovementioned applications to intervene and of the detriment which was thus caused to the right of the two applicants for leave to intervene to defend their interests free from all external influences for the purposes of the case-law referred to in paragraph 50 above. It also follows that the applicants misused those procedural documents in terms of the case-law cited in paragraph 49 above.

60

It is also necessary to reject as irrelevant the applicants’ claim in their observations of 17 November 2015 (see paragraph 14 above) that the applications of IPPF and MSI to intervene do not contain any confidential information. The objective of the prohibition on a party’s use of its right of access to procedural documents for purposes other than those connected with the pursuit of its own case is to ensure that the general principle of the due administration of justice is observed and not to protect the supposedly confidential content of those documents.

61

It must therefore be held that the applicants committed an abuse of procedure, for the purposes of the case-law referred to in paragraph 51 above, which may be taken into account in awarding costs pursuant to Article 135(2) of the Rules of Procedure.

62

In the light of the foregoing, the Court will make an equitable assessment of the circumstances in the present case by ordering that the applicants, who have not applied for costs, are to bear their costs and also, on account of the abuse of procedure committed, to pay three quarters of the costs incurred by IPPF and MSI.

63

IPPF and MSI are to bear one quarter of their costs.

64

Since the Commission has not applied for costs, it must be ordered to bear its own costs.

On those grounds,

THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT

hereby orders: