Abstract
The European Citizens’ Initiative (ECI) was presented as a direct opportunity for the voices of European citizens to be heard in the EU institutions. There have been, however, reservations about implementing this tool to facilitate direct democracy; these reservations have contributed to the vague criteria outlined in the Lisbon Treaty for this initiative. There is the danger that citizens will see the ECI as an instrument to bypass the normal legislative process. Instead of bringing the EU closer to its citizens, the ECI might serve to increase frustrations and the feeling that the EU does not ‘listen to the people’. Furthermore, the impact of this initiative on the legitimacy of the EU institutions cannot be predicted.
The changes introduced by the Lisbon Treaty hardly speak to anyone's imagination. The European Citizens’ Initiative (ECI), can however, serve as a wake-up call for those who are at least a bit interested in how decisions that concern their daily lives are initiated. For the first time ever, citizens of the European Union will be given a chance to make their voices heard. A well-organised group of people from several Member States will be able to ask the European Commission to take concrete action on their behalf. Is this a great victory of democracy in a transnational dimension, or is it a marketing trick that may cause great disappointment?
At the very beginning, the main dilemma of the founders of the European Union was how to prevent Member States from acting against one another, so they would not block the integration process already at its conception. The answer was simple: give the initiative to a body independent of the national governments, which in its decisions would be driven primarily by the common goals of the whole Community. Moreover, any such goal would be strongly legitimised by a long process of consultations, also involving the participation of social actors that would precede every legislative proposal in the EU. In this way the European Commission gained a monopoly over initiating the legislative process within the EU. Naturally, a final outcome is determined by the Member States together with the European Parliament, but the initiative always comes from the Commission.
Until today the decision-making process, which defines over two-thirds of the legislation in force in Member States, has taken place within the maze of EU institutions. The decisions have, of course, been taken by democratic governments and directly elected Members of the European Parliament (MEPs), but the feeling was that everything happened beyond the sphere of influence of ordinary citizens. The main mission of the European Convention, which prepared the last reform of the EU, was to bring the European project closer to its citizens. No wonder that before long, the idea arose to use direct democracy in the European context.
Controversies emerged, however, already at the very first stage of serious discussions on the ECI. First, many feared that this approach would raise expectations that would be difficult to meet. Second, there was the eternal question of the tension between representative and direct democracy. Some MEPs disliked the whole idea, perceiving it as a kind of competition to their own work. In Brussels one could hear the opinion that the crisis of democratic legitimacy could be more easily solved by strengthening the powers of the European Parliament and the national parliaments rather than by introducing elements of direct democracy into the EU context. Third and finally, it was feared that the initiative could be used by well-organised interest groups to promote solutions to their benefit.
For these reasons, the Lisbon Treaty is rather laconic when describing the criteria that have to be met in order to put forward an ECI. There is thus much to clarify in currently ongoing negotiations. What we already know is that each petition must be supported by a minimum of one million EU citizens, coming from a meaningful number of Member States. There are, however, many details yet to be determined. What is the exact number of Member States to be represented by the signatories of a given initiative? Who will check these signatures and how? How will the question of the minimum age of participants in a given initiative be addressed? How much time will the Commission have to consider the request and decide whether it falls within the scope of the EU's competences?
Already before the summer of 2010 the European Commission presented preliminary answers to these questions [1]. According to the Commission, the citizens submitting an initiative should represent at least one-third of the Member States. The minimum number of signatories coming from a given country will be based on a principle similar to the one that governs the distribution of the seats in the European Parliament (in proportion to population, with a bonus for smaller and medium-sized states). The minimum age of a signatory should correspond to the legal voting age in the country where the signature originates. In order to simplify the already complicated process of collecting the signatures, the Commission has declared that it will provide special software to enable on-line collection. In addition, a special procedure for a preliminary assessment of the admissibility of an initiative was proposed, which would take place when at least 300,000 signatures are collected. The idea behind this assessment is to reduce a possible disappointment of citizens who had invested a lot of their time in an initiative ultimately rejected for procedural reasons. Collecting a million signatures is, after all, quite an endeavour.
This brings us to the main point. There is no doubt that the ECI could become an instrument that would bring the European Union closer to its citizens. However, quite an opposite scenario is also possible, especially if the majority of initiatives are rejected for different reasons.
The main task of the European Commission is to defend the legal order of the EU. It is clear, therefore, that it will not be able to consider even the most legitimate and popular proposals of EU citizens in areas where the EU has no competence to act. Hence initiatives concerning, for example, abortion, euthanasia or legalisation of ‘soft’ drugs will be considered inadmissible, which may be frustrating to many. Moreover, there could be other reasons for questioning the merit of an initiative. One of the most fundamental principles of European integration is the principle of subsidiarity, whereby the European Union takes action only when there is a guarantee that it would be more effective and legitimate than actions taken by national or local governments. Many of us, if encountering obstacles in pursuing proposals in our home country, would immediately want to turn to the EU. But is this urge always justified? Why, for example, should the EU prohibit trading on Sundays, as some German Christian Democrats wish? Would it not be better in this and similar cases to leave a free hand to the Member States, whose decisions are driven by different traditions, the opinions of their citizens or a different economic situation?
It might be also problematic if a given initiative concerns an issue which has just been solved by the Member States and the European Parliament and, furthermore, solved not entirely along the wishes of the initiative's signatories. Whose claim should be more important to the European Commission then? Would it not weaken the legitimacy of EU institutions? The most fundamental question concerns, however, the possibility of challenging decisions of the European Commission on the admissibility of an initiative. In case of a negative response, should the citizens be given a chance to appeal to the European Court of Justice (ECJ)? Will the ECJ undertake to adjudicate on such a question? Will it not compromise public confidence in the Commission, and will it not put political pressure on it to admit initiatives that go against the economic interest of the Union, the principle of subsidiarity or even against common sense?
Naturally, only the actual use of the ECI will allow us to start answering the above questions. The Constitutional Affairs Committee of the European Parliament is now working on solving these issues that emerged in the process of translating the letter of the Treaty into practice. Fearing accusations that in reality they do not care about reaching out to citizens, MEPs have undergone a noticeable change in their approach to this project. In the course of negotiations with the Council, discussions at the Committee level and last but not least consultations with citizens, their aim now is to simplify the instrument, even if it means putting a significant burden on the shoulders of the Commission and the Member States. Proposals, like the one presented by two rapporteurs aiming at lending some credibility to the initiatives by placing a deposit or having an elected politician involved, have all been abandoned [2]. MEPs want also to merge the admissibility check with registration, hence preventing organisers of an initiative from being left in suspense as to the legality of their project until few thousand signatures are collected. The focus is now placed on securing the initiative from being hijacked by well-organised interest groups; hence, the idea of excluding legal persons from launching committees and the emphasis on transparent financing.
We politicians have also quickly realised that the potential ‘end-users’ of this project are primarily interested in details, like how many signatures should be collected and who should certify them. These and similar details need to be solved with their greatest involvement, so that we all end up with an instrument which will give the citizens a true possibility to act. These actions have to be, however, accompanied by information concerning the potential merits of such initiatives. In fact, the ECI can serve as a good excuse to talk about the EU, about what it does and where its competences end. This exercise alone will already serve the cause standing behind this whole project, which has always been about bringing the EU closer to its citizens.
Footnotes