By Hanneke van Eijken and Simona de Heer
EU citizens have a political right to submit an initiative for new legislation to the European Commission. This is called the European citizens’ initiative, enshrined in Article 11 TEU, and further regulated in Regulation 211/2011. This form of direct, participatory democracy could be seen as a tool to foster citizen participation and to bring the EU closer to its citizens. It was introduced in the Lisbon Treaty as a response to even out the EU’s democratic deficit. Recent citizens’ initiatives cover issues as climate change, education for children with disabilities and evaluation mechanisms to see whether Member States adhere to European values.
From a regulatory perspective it is interesting to see whether regulation of direct democracy through the introduction of the EU citizens’ initiative is an effective tool for strengthening democracy and where its pitfalls lie. Since its introduction the citizens’ initiative has been subject to criticism as to its effectiveness. Currently, the European citizens’ initiative is being reformed. This raises questions about the effectiveness of the reformed citizens’ initiative and how it relates to parliamentary democracy. First, the weaknesses of the current citizens’ initiative will be discussed. Secondly, the reform and its achievements will be elaborated on. Finally, the relationship between parliamentary democracy and direct democracy will be examined.
The effectiveness of the current Citizens’ Initiative
Two features of the citizens’ initiative compromise the effectiveness of the instrument: the legal admissibility test and the non-binding nature of the citizens’ initiative. To submit a successful citizens’ initiative, an initiative needs one million signatures of citizens of at least seven Member States. Prior to starting the collection of signatures, the organisers need to register their proposal at the Commission’s website and satisfy different criteria. This is where the ‘legal admissibility test’ comes in, meaning that a proposal must not fall “manifestly” outside of the Commission’s powers. This test has been controversial and problematic. In 2018, 22 of the 48 European citizens’ initiatives were rejected because they were found legally inadmissible.
The Court has sometimes annulled Commission decisions because of how they deployed the legal admissibility test, such as in cases Minority Safepack and Stop TTIP, where the Commission had offered insufficient or wrong argumentation (see blogs by Karatzia on Minority Safepack, Stop TTIP).
The second weakness of the instrument is its non-binding nature. To date, there has only been one successful citizens’ initiative, Right2water,that has been followed up with legislation for increased water access and water quality. Other ‘successful’ initiatives have had cooler responses, such as the ban glyphosate initiative, that did in fact not lead to a ban of glyphosate, but did lead to legislation on more transparency in the scientific assessments of pesticides. Moreover, the recent One of Us case makes clear that in any case, even if an initiative meets all the requirements, under Regulation 211/2011 the ultimate power to decide on citizens’ initiatives lies with the Commission, which had already been implied in the Stop TTIP case.The One of Us case is now at the CJEU for appeal.
A new dawn? Reform of the Citizens’ initiative
Regulation 211/2011 has been reformed due to obstacles encountered by citizens willing to organise an initiative. The reformed regulation will enter into force on 1 January 2020 and is more elaborate and clearer on the procedures. The reform aims to create awareness and to enable organisers of an initiative to more easily register it and organize the collection of signatures. The registration stage, the collection of signatures, the follow-up stage and the role of the European Parliament have been adjusted with the reform. The question arises whether this reform actually makes the citizens’ initiative an effective form of direct democracy.
First, for the admissibility test it is important to note that the Commission will now be able to “partially” register an initiative, instead of entirely rejecting it in cases where the Commission only has the power to propose legislation on some, but not all, of its objectives.
Secondly, with regards to collection of signatures, the reform obliges the Commission to make European citizens’ initiatives easily and freely accessible for all citizens in all languages with national contact points in Member States. The reformed regulation does not lower the minimum age to support a citizens’ initiative to 16 years as such, as the European Parliament had proposed. However, Member States are explicitly allowed to set such age at 16 years if they wish. The reformed regulation also contains an article on transparency, where funding and support of a group of organisers must be clearly registered, regularly updated and made public by the Commission.
Thirdly, the follow-up by the Commission has somewhat been addressed. After the initiative has gathered the required support of one million citizens in twelve months maximum, the Commission’s examination of the initiative will be extended from three to six months before the Commission’s legal and political conclusions are set out. It is said this will give more time for organisers to promote their initiative. Furthermore, the Commission must, if it decides to act, set out the action it intends to take in response to the initiative and set out a timeline for these actions.
Fourthly, some changes have been made to the role of the European Parliament in the process. The Regulation now expressly states that the Council, national parliaments and civil society must be able to attend this hearing, and that “the European Parliament shall ensure a balanced representation of relevant public and private interests” and “shall assess the political support for the initiative” after the public hearing. This seems to provide organisers with a broader stage to spread idea’s and raise awareness of certain issues. To strengthen the political impact of successful initiatives, recent changes to Parliament’s Rules of Procedure also provide that the EP “shall hold a debate” on such initiatives. Most importantly, Article 16 provides that the “European Parliament shall assess the measures taken by the Commission as a result of its communication referred to in Article 15(2).” This was originally not included in the proposal but was added by the European Parliament in its amendments. This new element could prove very important for the much-criticised follow-up stage, but it is unclear what such assessment would entail and would concretely mean. It is a pity that the ‘assessment’ is not made more concrete in the new Regulation.
The citizens’ initiative as a comprehensive tool enhancing democracy?
The citizens’ initiative allows European citizens to gather digitally and make themselves directly heard. Even though citizens’ initiatives are non-binding for the European Commission, they allow citizens to place issues on the agenda. In a wider context, direct democracy can lead to empowerment and feeling heard. However, direct democracy has also brought risks of destabilising societies.
Authors have warned for using direct democracy, such as referenda “as a full alternative to the instruments and institutions representative of democracy risk creating parallel channels of legitimation which could destabilize and delegitimize parliaments” (Martinico 2019). As opposed to the referendum, the citizens’ initiative provides an elaborate and more nuanced way for citizens to make their voices heard, as initiatives can be very comprehensive. It allows people to draw the Commission’s attention to certain issues. Subsequently, the Commission has the discretion to initiate legislative procedures, in which the European Parliament often has a role. So, the citizens’ initiative as direct democracy does not necessarily create a separate parallel accountability or legitimacy to parliamentary accountability nor a circumvention of parliamentary democracy. It merely offers another way to trigger legislative processes often involving parliamentary democracy.
With the reforms, the European citizens’ initiative has not necessarily been further intertwined with Parliamentary democracy. The role of the European Parliament remains limited in the new regulation and, as case law confirms, the European Commission remains in the drivers’ seat. Nevertheless, it has a clear obligation to adequately motivate its decisions, and the Court is closely watching.
* This blogpost is based on a contribution in the forthcoming edited volume by H. van Eijken, T.P. Marguery and S. Platon, ‘The European Elections, 40 years after. Assessment, Issues and Prospects’, forthcoming (2020). Simona is (student)research-assistant European law and Hanneke is Assistant Professor European law.