The European Citizens` Initiative: diversifying policy debates at European level

With the entrance into force of the Lisbon Treaty in 2009, a somewhat ambiguous tool entered the political and legal arena of the European Union - the European Citizens' Initiative (ECI). What has been introduced as the first transnational tool of participatory democracy, initially raised great hopes of making the Union more accessible. After a bit less than a decade in operation, the consensus seems to be that the tool could not live up to those hopes. Primarily, this seems to be due to the inherent tension between on the one hand the extremely high organisational burden for organisers of ECIs and on the other the very limited outcome of an ECI, even where successful. The present blog post intends to demonstrate that part of this tension – the non-binding nature of the ECI – is already rooted in the tool's position within the Treaties themselves. While this finding as such does not overcome the persisting tension, it at least sheds a more positive light on the overall effectiveness of the ECI.

The European Citizens' Initiative allows for one million citizens, from at least one-quarter of the Member States, to invite the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties. Regulation (EU) 2019/788, which as of 1 January 2020 repealed Regulation (EU) No 211/2011, lays down the concrete procedure and conditions required for an ECI. The procedure consists of three steps – (1) registration, (2) collection of support, and ultimately, (3) submission of a successful initiative, defined as one that meets the threshold of one million supporters, to the Commission for examination. From the very beginning, this procedure and the conditions attached thereto have been beset with problems. The early years of the ECI can be characterised by the struggle to determine the registration requirements to be fulfilled by organisers. With the recent legislative revision of Regulation (EU) No 211/2011 and the CJEU's jurisprudence, these requirements have become slightly more lenient – shifting the discussion to the perhaps most pressing question underlying the citizens' initiative – namely, which actions must or should the Commission take subsequent to a successfully submitted initiative. In a recent judgment rendered by the Grand Chamber of the Court of Justice, this question has been finally answered. In Puppinck, the Court found that the Commission is not legally obliged to follow upon a successful initiative. While from a legal point of view, the judgment is generally appreciated in that it strictly abides by the wording of the law, from a political point of view one cannot help but acknowledge that the Court was unable to resolve the tension between the extremely high organisational burden for organisers and the very limited outcome of an ECI. Seen in light of the recent revision of the ECI's legal framework, which equally forfeited the opportunity to address this core tension, it would seem that for the time being, the ECI is determined to remain a tool of participatory democracy which has not yet reached its optimum potential.

In a recent contribution on this Forum, Luis Bouza García argued that this pessimistic conclusion might be due to a misinterpretation of the ECI as a 'tool able to introduce new issues into the policy-making cycle'. He suggests that if one were to consider the ECI as an 'opportunity to make policy debates more diverse and controversial […] it is impossible to underappreciate the effects it has already had in opening up opportunities to participate in EU policy-making.'

It is precisely that argument that can be confirmed by analysing the ECI's position within the Treaties themselves. The ECI is based on Article 11(4) TEU read in conjunction with Article 24 para. 1 TFEU. The former provision is part of Title II on the Provisions on Democratic Principles. Article 11 has a special position in this title in that it largely constitutionalises the Commission's principles of good governance which the latter already proposed back in 2001. In its 2001 White Paper, the Commission had proclaimed to open up 'the policy-making process to get more people and organisations involved in shaping and delivering EU policy [by promoting] greater openness, accountability and responsibility for all those involved'. It is in this light that Article 11(1) TEU calls for the institutions to establish channels of communication for both citizens and representative associations 'to make known and publicly exchange their views in all areas of Union action'. Article 11(2) TEU adds the need for the institutions to 'maintain an open, transparent and regular dialogue with representative associations and civil society', which is partly concretised and partly complemented by Article 11(3) TEU in that it requires the Commission to 'carry out broad consultations with parties concerned'. However, those provisions are generally 'not conceived […] as […] enforceable subjective right[s]' for citizens. Instead, 'the kind of entitlements regulated convey an approach that is very much focussed on providing guidelines for the behaviour of institutions and less so on empowering the citizen.' That is to say, that Article 11 TEU should be seen as a general obligation for the institutions – and particularly the Commission - to hear different opinions and viewpoints rather than an obligation to follow any of these views. If understood in this context, it can be argued that also the ECI as set out in Article 11(4) TEU is addressed to the Commission in terms of an obligation 'to seriously consider and engage in an assessment of the proposals of a successful ECI, and to do so publicly and subject to public scrutiny', rather than to the citizens in terms of giving them a right to have their initiative 'transformed into a formal proposal'. While admittedly an isolated reading of Article 11(4) TEU could prima facie suggest the opposite, seen in the context of Article 11 TEU as a whole, the ECI might in effect rather serve as yet another non-binding tool intended to ensure effective participation.

Article 24 para. 1 TFEU, which serves as the legal basis for the adoption of the ECI Regulation, seems to follow a similar logic. Article 24 TFEU belongs to Part Two on Non-Discrimination and Citizenship of the Union and provides for four political rights attached to Union citizenship: the right to petition the Parliament, the right to apply to the Ombudsman, the right to write to Union institutions and bodies in any EU language and the ECI. Those rights enable citizens to participate in the democratic life of the Union, as provided for in Article 10(3) TEU. While clearly these can be understood as rights granted to the citizens, more generally they are to be seen as tools 'ensuring that representative democracy at EU level is effective and, most importantly, legitimate'.

In that sense, it would seem that the ECI is to be interpreted as another means for citizen engagement, but none that would alter the legislative monopoly of the Commission. Just like the right to petition the Parliament and the Commission's principles of good governance 'the ECI creates an institutional mechanism to channel the citizens' political input towards the institutions, which are, and remain, in charge of the legislative process'. Citizen participation, while undoubtedly constituting a value in itself, in this bigger picture, seems to be designed as a mechanism of legitimisation and creating guidelines for the behaviour of the institutions.

In this context, it thus is hard to deny that the ECI did have success on this level. It clearly opened another route for citizens' engagement, enabled different and controversial voices to be heard in Brussels, and thereby gave the Commission new input in its agenda-setting capacity. It is true that so far, in some cases, the Commission’s follow up on successful ECIs did not completely meet the hopes of organisers in terms of policy proposals. However, as has been developed in the foregoing, formal policy proposals are not the primary purpose of the ECI. Instead, the ECI aims to foster citizen participation in the democratic process of the Union. As has been pointed out by Advocate General Bobek, the added value of the European Citizens' Initiative thereby lies in '(i) the promotion of public debate; (ii) enhanced visibility for certain topics or concerns; (iii) privileged access to EU institutions, enabling those concerns to be tabled in a robust way; and (iv) the entitlement to a reasoned institutional response facilitating public and political scrutiny' – values that have undeniably been promoted in the past eight years.

This is of course not to say that the ECI as it stands is a perfect tool of participatory democracy. Undeniably, lowering the organisational burden for organisers would enable even broader citizen participation, and would further boost the added value of the ECI. Considering the recent revision of the ECI Regulation, it is, however, unlikely that the legislative framework will be revised yet again anytime soon. Therefore, while perhaps not having achieved its optimum potential as a tool of participatory democracy yet, the current impact of ECI corresponds to its position within the Treaties. In that sense, the European Citizens` Initiative should not be underestimated in terms of diversifying policy debates at European level, as well as forcing the institutions, and particularly the Commission, to seriously listen to the political input of not less than one million citizens from at least one-quarter of the Member States.