Citizen’s initiative in the EU: the end of a dream?

Citizen’s initiative in the EU: the end of a dream?

Abstract. The paper focuses on the participatory democracy and seeks to demonstrate the limits of the Treaty provisions, arguing that the citizen’s initiative can contribute to the solution of the so-called “democratic deficit” of the EU.

The political parties opposing to the process of European integration, instrumentally uses the counter-myth of an authoritarian and indifferent Europe, which is far from its citizens, inert or ineffective against challenges of the contemporary society. The purpose of this paper is instead to demonstrate that there are all the tools to give the system greater democracy and guarantee the proximity of the institutions to the citizens. In this regard, a solution to the democratic deficit is proposed through the institution of the citizen legislative initiative provided for by the Treaty, aimed at the active participation of the European citizens and understood as a possible instrument of integration for the creation of a common political identity.

The various reforms of the founding Treaties that have succeeded over time have sought to provide an answer to the problem of the democratic deficit of the European Union through the progressive strengthening of the powers of the European Parliament, as a body directly representative of the citizens of the Union. Despite this strategy of “democratization through parliamentarization”, however, in recent years there has been a growing “separation” of citizens from the institutions of the Union and a general disaffection towards the traditional mechanisms of representative democracy at European level. In fact, democracy needs representation but does not end in this.

In this perspective, the Lisbon Treaty enshrined in art. 11 TEU the principle of participatory democracy, which takes the form of the civil dialogue (para. 1 and 3) and of the citizen’s legislative initiative (para. 4). However, it should be observed that art. 11, para. 4, TEU, in assigning to citizens the right of initiative, highlights a series of limits that denote the distrust of the drafters of the provision compared to an institution that seems to go beyond the traditional means of participation, approaching those of direct democracy.

– The first limit stems from the threshold of citizens required to the exercise of the right in question, which must be at least one million. This is clearly a very high number, especially as citizens must belong to a significant number of Member States. In addition to that, art. 7 para. 2, of the Reg. 211/20111 has established that in at least a quarter of the Member States, the citizen’s initiative must be signed by at least a minimum number of citizens equal to the number of EP members elected in each Member State multiplied by 750. Art. 11, par. 4, TEU does not foresee any obligation on the part of the Commission to actually present the proposal to the competent bodies, with the consequence that the actual chances of success will largely depend on the media coverage that the initiative will manage to have.

– A second limit is related to the scope of the provision. The wording of art. 11, para. 4, TEU, leads to the exclusion of the citizen’s initiative does not cover those acts that can only be adopted by the Commission, such as the measures provided for in Article 105 TFEU. Furthermore, the provision, indicating that the initiative concerns matters on which citizens “consider a legal act of the Union to be necessary for the implementation of the treaties”, seems to exclude that it may have as its object the beginning of the procedure for revising the Treaties. Moreover, Regulation 211/2011 seems to limit the citizen’s initiative only to legislative acts.

– A third limit concerns the content of the right. Art. 11, para. 4, TEU designs that the initiative is intended to allow citizens “to invite the European Commission, as part 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”. Art. 11 entrusts the Commission with a wide margin of discretion and this implies that it could block the initiative, where it considers that the proposal does not fall within its own powers or is not appropriate or ultimately not necessary for the implementation of the Treaties. Art. 4 of Reg. 211/2011 points out further limits to the initiative, including the manifest opposition to the values of the Union as set out in art. 2 TEU.

The vagueness of the envisaged limits, however, ends up giving the Commission a wide margin of discretion. It must be said, however, that recently the Court’s case-law in the T-754/14 “Stop TTIP2 of 2017 attempted to contain the effects deriving from the broad discretionary power left to the Commission in this sense. More specifically, in the judgment under examination, the General Court, by ruling on the annulment of the decision of the European Commission not to go on with the registration of a proposed initiative by the citizens of the Union, provided some clarifications as to the scope and content of the initiative, taking into consideration not only the procedural aspects, but also the substance of the question submitted to its examination.

In particular, the Court ruled that: 1) the notion of a legal act which EU citizens can request to be adopted through the proposal must be broadly understood, and can not be limited only to the Union’s legal acts of a definitive nature and which produce legal effects vis-à-vis third parties3; 2) the initiative of European citizens does not constitute an interference in the legislative procedure, but it is an expression of the effective participation of the EU citizens in the democratic life of the Union itself, without compromising the institutional balance set out in the Treaties4.

The experience of direct democracy in the EU on the basis of the citizen’s initiative will certainly and inevitably be a distinctive feature rather than an imitation of other experiences of participatory democracy among Member States of the EU. In this regard, it seems clear that the legal framework within which this initiative is founded accounts little, in itself, to promote what should be the two democratic promises of this new legal channel for citizen participation: 1) to offer a significant voice on the agenda, to focus on interests that would otherwise be excluded from the institutional political debate; 2) to increase the democratic “quality” of life within a Union that faces long-term challenges of accountability and legitimacy. The thresholds for presenting an initiative are sufficiently burdensome to be successfully overcome only by a well organized civil society. The above mentioned questions regarding the precise purpose of this instrument remain strong and persistent. However, there is no a civil society stricto sensu and also the jusgment does not solve all questions of the margin of appreciation. From the analysis carried out, the unfitness of the citizen’s initiative tool to solve the problem of democratic deficit emerges.

In my opinion, the involvement of the national parliaments in the integration process should be favoured. In this perspective, some reforms introduced by the Lisbon Treaty are set. Art. 12 TEU regulates the participation of national parliaments in the integration process5. This rule, while on the one hand was an expression of the need for national parliaments not to be marginalized, on the other hand it was also one of the responses given by the Institutions to the never-ending criticisms of the democratic deficit.

The above mentioned art. 12 TEU is in fact the development of a process that began with acts of a purely programmatic nature: the two declarations annexed to the final act of the 1991 Maastricht Intergovernmental Conference (on the role of national parliaments in the EU and on the Conference of Parliaments) and the Laeken declaration of December 2001 adopted following declaration n. 23 annexed to the Nice Treaty on the future of the EU. In particular, it should be pointed out that with the first two declarations, the States limited themselves to expressing the need for the participation of national parliaments in the activities of the EU and to invite the EP and the national parliaments to meet in the formation of a Conference of Parliaments to be consulted on the major EU guidelines. With the Laeken declaration, the States themselves have come to stress the need to examine the role that these parliaments can play in this regard. Put simply, there is a shift from soft law to binding rules.

Conclusions. The institution of participatory democracy has some limits, which can be overcome through the participation of national parliaments: strengthening the parliamentary component of the institutional system could therefore try to bring the European project closer to the citizens and, nonetheless, to give it legitimacy.

 

 

 

 

 

 


1. Regulation (EU) No 211/2011 of the European Parliament and of the Council on the citizens’ initiative, 16
2. Case T-754/14, Michael Efler and Others v European Commission [2017], Judgment of the General Court (First Chamber), ECLI:EU:T:2017:323
3. Ibidem, para. 12: “Regulation No 211/2011 covers, in general, all legal acts […] nor their legal context indicates that the concept of ‘legal act’ must be given a narrow interpretation”.
4. Ibidem, para. 47: “ECI proposals constitute an expression of the effective participation of citizens of the European Union in the democratic life thereof, without undermining the institutional balance intended by the Treaties”.
5. See art. 12 lett. (a) to (f): “National Parliaments contribute actively to the good functioning of the Union by…”.

List of sources
Baratta R., Le principali novità del Trattato di Lisbona, in DUE., 2008;
Consolidated versions of the two Treaties, TEU and TFEU;
Cooper L. The Watchdog of Subsidiarity: National Parliaments and the Logic of Arguing in the EU, in JCMS, 2006;
Craig P. and De Bùrca G., EU Law Text, Cases, and Materials, Sixth Edition, OUP Oxford, 2015;
Cuesta Lopez V. The Lisbon Treaty’s Provision on Democratic Principles: A Legal Framework for Participatory Democracy, in EPL, 2010;
Dougan M., What are we to Make of the Citizens’ Initiative?, in CMLR, 2011;
Greven M., Some Considerations on Participation in Participatory Governance, in Kohler-Koch B.-Rittberger B. (a cura di), Debating the Democratic Legitimacy of the European Union, New York, 2007;
Levrat N., L’initiative citoyenne Europeénne: une responde au deficit démocratique?, in CDE, 2011, 53 ss;
Mathijsen P., The Power of Co-decision of the European Parliament Introduced by the Maastricht Treaty, in Tulane European & Civil Law Forum, 1993.
Mendes J., Participation and the Role of the Law after Lisbon: A Legal View on Article 11 TEU, in CMLR, 2011;
Morelli M., La democrazia partecipativa nella governance dell’Unione Europea, Milano, 2011;
Piroddi P., Il Parlamento europeo nel Trattato di Lisbona tra democrazia rappresentativa e democrazia partecipativa, in RIDPC, 2011;
Regolamento (UE) n. 211/2011 del Parlamento Europeo e del Consiglio, 16 febbraio 2011;
Starita M., I principi democratici nel diritto dell’Unione Europea, Torino, 2011;
Von Bogandy A., The European Lesson for International Democracy The Significance of Articles 9 to 12 EU Treaty for International Organizations, in Jean Monnet Working Papers

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