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The Rapport Kaufmann about the European Citizens Initiative: a completely new instrument to strengthen democracy in the European Union

pdf mise en ligne :08 11 2008 ( NEA say… n° 57 )

COOPERATION JUDICIAIRE CIVILE > Matières matrimoniale et de responsabilité parentale

Sylvia Kaufmann presented working documents for her report on the Citizens' initiative. Mrs Kaufmann examines the questions concerning the implementation of the initiative.

In providing for the introduction of the (ECI), the Lisbon Treaty contains a significant innovation in the area of European constitutional law. Its introduction is a first step towards the development of supernational direct democracy and its implementation could help to create a genuinely European public space in the longer term.




ECI: General considerations

The Member States gave the Council the right to 'request the Commission to undertake any studies it considers desirable for the attainment of the common objectives, and to submit to it any appropriate proposals'. Through the introduction of the codecision procedure in the Maastricht Treaty, they also gave the European Parliament the power to request the Commission to submit legislative proposals.

Citizens may take the initiative of inviting 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'. On this basis, for the first time Union citizens themselves can become directly involved in the European legislative process.


The right to participate in an ECI

In accordance with Article 11 (4) UE Treaty (n.v.), Union citizens may take a citizens' initiative.

There are two ways Union citizens can take part in an ECI: firstly as on organiser, and secondly as supporters. The work of organising an ECI involves submitting an application for registration of the initiative to the Commission, gathering statements of support from Union citizens, submitting the initiative to the Commission and explaining to the College of Commissioners the nature of the request begin made to the Commission through the submission of the initiative.

Union citizens thus have the right to demand that the Union institutions and the Member States  refrain from taking any measures likely to prevent or restrict the exercise of their rights to participate in or organise an ECI or to make the exercise of those rights less attractive. What is more the successful submission of an ECI gives the organisers an individually enforceable right to explain the purpose of the initiative to the College of Commissioners and the right to a duly substantiated reply from the College.



ECI and Petition to the European Parliament: the differences

Although the outcome of an ECI or petition may be similar – for example, both may lead, at the instigation of several persons, to the adoption of a European Union legislative act – they different fundamentally in terms of their function and, accordingly, their addresses and the conditions governing their submission. The difference in the addresses is immediately obvious. Whereas  petitions are addresses to the European Parliament, ECIs are addressed to the Commission. The European right of petition is granted to Union citizens in their capacity as persons directly or indirectly affected by the exercise of the European Union's sovereign powers and offers them the possibility, in that capacity, to address the directly-elected Parliament in order to inform it, as the representative of citizens' interest, about a given state of affairs and call for that state of affairs  to be remedied. In contrast, for the first time the ECI enables Union citizens to participate directly  in the exercise of the European Union's sovereign powers by giving them the possibility, like the Council or the European Parliament, to request the Commission to submit a legislative proposal.

As a result, the conditions governing the use of these two legal instruments also differ. The right of petition is restricted to matters which directly affect the petitioner or petitioners, whereas no such restriction applies to the participants in an ECI, and nor would such a restriction make sense. Instead, like all persons exercising European powers, the participants in an ECI are required to foster the European general interest and to comply with European law. No such requirement must be met when submitting a petition.



Procedural Issues for European Citizens' *

The procedure for a European Citizens' Initiative can be divided into four stages:

l       registration of the ECI;

l       gathering of expressions of support for the ECI;

l       submission of the ECI;

l       consideration of the ECI by the Commission.


The first stage in the ECI procedure begins with the submission to the Commission by the organisers of the application for registration of the ECI and ends with the formal Commission decision confirming that the registration process has been successfully completed.

The ECI procedure should therefore be draw up in such a way that a binding decision on the admissibility of the ECI concerned is taken before the work of gathering expressions of support begins. Such a decision could be taken as part of a formal registration procedure.

As things stand, the only body which can be responsible for accepting applications for registration and assessing the admissibility of ECIs is the Commission. In the document setting out the result of its assessment, it must provide the organisers with legally binding confirmation of the admissibility of their ECI. The question of whether such a decision can be subject to legal review by the Court of Justice of the European Union and the European Ombudsman or can be said to fall within the scope of political scrutiny of the Commission by the European Parliament is another matter altogether.

The admissibility of an ECI is not a matter of political advisability, but rather a mandatory precondition, subject to full legal scrutiny, which must be met before the matter raised in the initiative can be considered on its own merits. The Commission therefore certainly has a duty, prior to any objective consideration of the request it contains, to assess the admissibility of an ECI, either as part of registration procedure, or after submission of the ECI.


*To major information on Procedural Issues: (EN) (FR)


Specific Issues

What is "a significant number of Member States" ?

Pursuant to Article 11 (4) EU Treaty (n.v.), the Union citizens who support a European Citizens' initiative must be nationals of a significant number of Member States. However, what is meant by "a significant number" is not made clear and is instead to be laid down, pursuant to Article 24 (1) FEU Treaty, by the legislator, who thus initially has a broad measures of leeway to set a figure of between two and 26 Member States.

However, the term "a significant number of Member States" must also be construed in the light of other Treaty provisions with a view to ruling out contradictory interpretations. For example, it should be borne in mind that the ban on discrimination on grounds of nationality represent one of the most fundamental principles underpinning the European Union's legal order. Within the sphere of application of Union law, therefore, the nationality of Union citizens should, as a matter of principle, be irrelevant.

The legitimate purpose behind the stipulation that the supporters of an ECI should come from several different Member States is to ensure that the starting point in the European legislative process is not an issue which reflects the specific interest of a single Member States, but rather one which is sufficiently consistent with the European general interest.

However, pursuant to Article 76 FEU Treaty legal acts dealing with matters relating to the area of freedom, security and justice may also be adopted on the initiative of a quarter of the Member Sates      . Accordingly, the Treaty itself gives a clue as to the number of Member States whose involvement would be sufficient to meet the requirement that the European general interest has been properly taken into account. Accordingly, when defining how many Member States constitute "a significant number" within the meaning of Article 11 (4) EU Treaty (n.v.) the legislator has legal and political leeway to choose a number between two and six Member States.

Admittedly, the requirement that the supporters of an ECI should be nationals of a substantial number of Member States makes little sense if it is not combined with a requirement stipulating the minimum number of supporters who must come from each of those Member States. Valuable guidance in this matter is provided by Article 11 (4) Treaty itself, which, by setting a figure of one million Union citizens, contains an interpretation to the effect that 1/500 of the population should be regarded as sufficiently representative. This interpretation should therefore also be the relevant criterion concerning representativeness of the individual Member States.


The other conditions of applicability of ECI

In addition to defining the term " a significant number of Member States", the regulation must also lay down the other conditions governing the ECI. One question which arises is whether participation in an ECI should be made subject to other criteria in addition to that of Union citizenship. In particular, age could be one such criterion. However, participation in an ECI should not be restricted to adults. A further issue to be addressed by the regulation is that of whether individuals should be allowed to organise an ECI, or whether several persons must be involved, and, if so, whether those persons must choose a specific organisational form for their grouping and whether they must come from several Member States.



The citizens and the Constitutional initiative

There is a debate going on among non-governmental organisation as to whether Article 11 (4) EU Treaty (n.v.) also encompasses, as a matter of principle, constitutional citizens' initiatives, i.e. initiatives seeking to amend the Treaties themselves. However, there are legal reservations regarding such an interpretation.

The provisions on the ECI and on the amendment of the Treaty do not "fit" together. An ECI pursuant to Article 11 (4) EU Treaty (n.v.) incorporates a request to the Commission to submit a proposal for a Union legal act, the right to propose which rests with the Commission.

As a matter of principle, the Treaties are amended by means of a treaty concluded by the Member States. Although the Commission has the right to submit to the Council "draft amendments to the Treaties", Union law draws a very clear distinction between "proposals", on the one hand, and "draft" or "initiatives", on the other, so that it is highly questionable whether such a "draft" could be regarded as a "proposal" within the meaning of Article 11 (4) EU Treaty (n.v.). But in particular against the background of recent developments, the European institutions should welcome citizens' ideas and proposals concerning the revision of the Treaties as well.

With the entry into force of the Lisbon Treaty, Parliament will also be granted the right to submit "draft amendments to the Treaties". In your rapporteur's view, consideration should therefore be given to the possibility of making provision for a constitutional citizens' initiative, analogous to the ECI pursuant to Article 11 (4) EU Treaty (n.v.), but which would apply, only the addressee directly to Parliament. The same conditions and a similar procedure would apply, only the addressee would change: the European Parliament rather than the European Commission.         




N.B.: The legal bases for the ECI can be found in the future Article 11 (4) of the Treaty on European Union (UE Treaty, new version – EU Treaty n.v.) and in the Article 24 (1) of Treaty on the Functioning of the European Union.


(EN)                            http://www.europarl.europa.eu/meetdocs/2004_2009/documents/dt/747/747882/747882en.pdf












                                    Alessandro Romano

                                    Università degli Studi di Napoli "L'Orientale"

                                    Napoli - Italia