The European citizens’ initiative: Lost in admissibility?

Abstract

The present article aims to examine the admissibility requirements of the European Citizens’ Initiative in the light of primary law provisions and general principles, in particular the principles of conferral, participatory democracy, legal certainty, protection of legitimate expectations and good administration, as reflected in the recent case law of the General Court. More specifically, it is examined how these principles and the primary law features of the instrument provide a clear theoretical underpinning for determining its material scope and serve as guidance for the legislator when regulating the admissibility mechanism and for the European Commission when applying the relevant rules. The recent Commission proposal on a new Regulation on the European Citizens’ Initiative is also assessed against this backdrop.

1. Introduction

According to Article 10(1) TEU, the functioning of the European Union (EU) shall be founded on representative democracy. However, with the Lisbon Treaty participatory democracy was added to the democratic principles of the EU as well, thus becoming a complementary source of democratic legitimacy next to representation. ¹ Participatory democracy as a concept aims at creating opportunities of direct participation of citizens in the decision-making processes and enabling channels of communication with often misrepresented categories of the population. ² Article 11 TEU, which provides for the different mechanisms giving effect to participatory democracy, partially crystalised existing institutional practices (Article 11(1)-(3) TEU) and partially introduced a new legal instrument, the European Citizens’ Initiative (Article 11(4) TEU). ³ Previously, the institutional practice mechanisms constituted in essence the exchange of views with citizens and representative associations and the conduction of consultations with parties concerned. ⁴ The new instrument of the European Citizens’ Initiative goes a step further and gives the opportunity to citizens to submit to the Commission a proposal for a legal act of the Union. Article 11(4) TEU provides that

not less than one million citizens who are nationals of a significant number of member states 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.

This provision echoes Article I-47(4) of the non-ratified Constitutional Treaty. ⁵

The differences between the other participatory instruments ⁶ and the European Citizens’ Initiative are twofold: first, in the case of public consultations and general dialogue with citizens and representative associations, the institutions reach out to the citizens and are in control of the procedure, thus following a top-down approach; on the contrary, in the case of citizens’ initiatives, as the term itself demonstrates, the citizens initiate the procedure to approach the Commission in a formal way and submit a proposal for a legal act (bottom-up approach). The second main difference concerns the outcome: citizens’ initiatives can lead to formal proposals of Union acts stemming from the joined forces of citizens throughout the EU, ⁷ whereas the other mechanisms constitute more informal means of exchange of views between citizens and the institutions.

On the basis of these first considerations, the two main legal features of the European Citizens’ Initiative can already be drawn: this instrument is meant to give effect to the primary law principle of participatory democracy and, unlike other instruments of participation, it is not a mere tool of exchange of views, but it could even lead to a formal proposal of a legal act. These primary law features serve as a framework for secondary law regulating the conditions for the functioning of the instrument.

Article 11(4) TEU further frames the European Citizens’ Initiative and implicitly submits it to two filters, a legal and a policy filter. The policy filter is implied by Article 11(4) TEU which provides that citizens may ‘invite’ the Commission to propose an act of the Union of a specific content. ⁸ It derives from this wording that the Commission enjoys discretion on whether to follow the proposal made by the citizens and which exact action to take (‘any appropriate proposal’). However, in the light of Article 296(2) TFEU, the Commission has to give reasons for the position it takes vis-à-vis an initiative. Thus, the instrument of the citizens’ initiative cannot formally trigger the adoption of a legal act but constitutes a formalised ‘agenda setting tool’ ⁹ which offers visibility to a policy suggestion and requires that the Commission justify its subsequent action or nonaction. ¹⁰ This interpretation, according to which the Commission has no legal obligation to make a proposal following the invitation of a successful initiative, was confirmed by the recent judgment in the case One of Us. ¹¹

This choice made by the Treaty can be explained through the Commission’s role in the EU institutional balance, ¹² being the principle institution initiating the adoption of Union legal acts (Article 17(2) TEU). Thus, an initiative launched by citizens which contradicts with a policy line, especially one based on existing legislation, would oblige the Commission to justify its position, but not to change its policy line. ¹³

The legal filter derives from the requirements that citizens may invite the Commission to act within its powers and that the proposed act would implement the Treaties. These conditions appear self-evident, in the sense that every proposal aiming to become a legal act of the Union has to respect the Treaties. ¹⁴ This entails respect of the Union competencies, fundamental values, principles and the distribution of powers among the different EU-institutions. The implementation of this legal filter through secondary legislation, including its application in practice, remains the most contentious aspect of the legal framework for citizens’ initiatives. This article examines how primary law principles guide the legislator when regulating the admissibility requirements for citizens’ initiatives and frame the powers of the European Commission when applying the relevant rules, also in the light of the recent case law of the General Court. Against these principles the proposal of the Commission for a new Regulation on the European Citizens’ Initiative is assessed. The first and main section introduces the legal framework and is divided in two subsections, focusing on the possible object of a citizens’ initiative and on the modalities of the admissibility control as exercised by the Commission. The second section analyses the new provisions on admissibility of the Commission proposal on a new Regulation. The third and final section draws conclusions on the impact of primary law principles on regulating and applying admissibility conditions on citizens’ initiatives.

2. Legal framework and shortcomings in practice

The conditions to put in place a citizens’ initiative were rendered concrete through Regulation (EU) No 211/2011, which was adopted on the basis of Article 24(1) TFEU and entered into force on 1 April 2012. ¹⁵ In the past five years since the entry into force of Regulation (EU) No 211/2011 on the concrete conditions of the functioning of citizens’ initiatives, the impact of this new instrument of participatory democracy can be assessed as limited. ¹⁶ The Commission has been criticised particularly as regards the application of the conditions which need to be fulfilled for an initiative to be considered admissible for registration and collection of signatures.

More specifically, Article 4(2) of Regulation (EU) No 211/2011 establishes an admissibility test, which the Commission needs to apply in order to decide within a two-month deadline whether to accept or not registration of an initiative; registration would then enable the organisers of an initiative to formally begin the collection of signatures, so at to attain the one million signatures required for the Commission to formally consider it. The admissibility test encompasses one positive procedural and three negative substantive conditions. The procedural condition requires that the organisers have formed a citizens’ committee of at least seven persons who are residents of at least seven different Member States (Article 3 and 4(2)(a)). The substantive conditions concern the subject matter of the initiative and require that it is not manifestly abusive, frivolous or vexatious (Article 4(2)(c)), it is not manifestly contrary to the values of the Union as set out in Article 2 TEU (Article 4(2)(d)) and, most importantly, as directly dictated by primary law, it does not manifestly fall outside the framework of the Commission’s powers to submit a proposal of a legal act of the Union for the purpose of implementing the Treaties (Article 4(2)(b)).

This latter condition has proven to be the main hurdle for organisers to achieve formal registration of their initiative and its application has generated a series of judgments by the General Court. Nineteen initiatives have so far been refused registration because, according to the Commission’s justification, no legal basis in the Treaties could support a legal act of the Union on their subject matter. ¹⁷ Two of these initiatives were in the end (partially) registered following a court judgment. ¹⁸ However, it is important to note that the Commission’s interpretation of its powers to submit legal acts of the Union have been confirmed in four out of six cases brought before the General Court. ¹⁹ Nevertheless, various stakeholders, including citizens’ organisations, ²⁰ academics, ²¹ the European Parliament ²² and the European Ombudsman ²³ have urged the Commission to reconsider its current practice towards offering better guidance to organisers and applying in a less strict way the admissibility test, so as to increase the number of successful registrations. The Commission itself in its report to the European Parliament and Council on the application of Regulation (EU) No 211/2011 noted that passing the admissibility test remains a major challenge for the organisers as an important number of initiatives are manifestly outside the scope of the Commission’s competencies. ²⁴

A. Object of a European Citizens’ Initiative

The organisers, in order to achieve registration of their initiative, need to demonstrate that their subject matter falls within the powers of the Commission to propose a legal act of the Union for implementing the Treaties (Article 11(4) TEU and Article 4(2) (b)). The first condition which derives from this provision is that the subject matter needs to fall within the competencies which have been transferred to the Union and not those which still lie with the Member States. The second condition builds upon the first one and requires that within the competencies of the Union, the institution which possesses the right of initiative on the subject matter proposed by the organisers is the Commission and not another institution. Article 11(4) TEU presupposes the competence of the Commission to propose a legal act of the Union and not merely to act in any possible way. Lastly, as the third condition, the primary law provides in an emphatic way that the organisers should invite the Commission to propose a legal act ‘which is required for implementing the Treaties.’ These conditions are further analysed.

1. Within the competencies of the Union

The organisers need firstly to show that the subject matter of their initiative lies within the competencies which have been transferred to the Union. This means that there needs to be a legal basis in the Treaties which would allow the Union to take legal action on the matter of the initiative. Since citizens are not expected to possess (thorough) knowledge of EU law, it does not constitute an admissibility requirement that organisers identify themselves the correct legal basis in the Treaties. While they are free to suggest to the Commission legal bases which according to their views could support their initiative, it is up to the Commission to assess objectively whether the suggested initiative falls under any possible legal basis. ²⁵ The Commission rejects the registration of an initiative if it can identify no legal basis in the Treaties which could support the proposed subject matter. This has proven so far to be the most difficult condition to fulfil. As it derives from the subject matters of the so far rejected initiatives, ²⁶ citizens have difficulties understanding the division of competencies between the Union and Member States. It could also be argued that this difficulty was partially caused through the Commission’s restrictive interpretation of the Union’s competencies. However, the Commission’s interpretation of the division of competencies between the Union and the Member States has been confirmed in all cases brought before the General Court having this question as their contentious point. ²⁷ As it will be shown later on, the two cases in which the Court annulled the Commission’s decisions, the reasons for annulment were, in the Minority SafePack case, the Commission’s lack of adequate justification, and in the case Stop TTIP the Commission’s interpretation of the instrument’s material scope, but not on the Union’s competencies. ²⁸ For this reason, as it will be analysed further on, adequate guidance from the side of the Commission, in line with the principle of good administration, could help organisers overcome this considerable hurdle of the registration of phase.

2. Within the competences of the Commission to propose a legal act

After it has been established that the object of the initiative does indeed lie within the competences which have been conferred to the Union, it also has to be verified whether the Commission rather than another institution ²⁹ has the right to make a proposal for an act of the Union on the object of the initiative. According to Article 17(2) TFEU, legislative acts of the Union may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts of the Union are adopted on the basis of a Commission proposal where the Treaties so provide. This means that although legislative acts, namely acts which are adopted on the basis of either the ordinary or a special legislative procedure, ³⁰ are in default adopted following a Commission proposal, other acts of the Union, such as decisions, recommendations, opinions, are based on a Commission proposal only if this is explicitly mentioned in the legal basis. ³¹

As regards this point, it needs to be underlined that Article 11(4) TEU refers only to proposals of acts of the Union and not to any action that the Commission can take, for instance to initiate the infringement procedure (Article 258 TFEU). ³² It also derives from the use of the term ‘proposal’ of the European Commission that an initiative cannot have as its ultimate aim an act that the Commission can issue alone without the involvement of another organ. ³³ If this literal interpretation is to be followed, then acts such as delegated and implementing acts issued by the Commission only (Article 290–291 TFEU) are excluded from the scope of a citizens’ initiative. In any event, since the adoption of delegated and implementing acts presupposes a Union act which confers this power to the Commission, such acts cannot be issued for the first time following the request of a citizens’ initiative.

A more appropriate question would thus be whether citizens could suggest to the Commission to amend an existing delegated or implementing act. If we take into account which types of action have so far been taken following a successful citizens’ initiative, we observe that the Commission adopts a holistic approach and does not perceive as possible follow-up action only formal proposals for acts of the Union. For instance, as follow-up to the successful initiative Stop Vivisection, which aims at phasing out the practice of animal experimentation, the Commission announced inter alia that it will organise a conference engaging the scientific community and relevant stakeholders in a debate on the subject matter of the initiative. ³⁴ It derives from this that the Commission does not exclude soft measures or actions which it can complete on its own as possible outcome of a citizens’ initiative. ³⁵ This interpretation serves the democratic aim of allowing citizens’ participation in as many areas of Union action as possible and is thus welcome. ³⁶

Another question which arises here is whether Article 11(4) TEU refers to the right of the Commission to submit formal proposals for Union acts or to all cases when the Commission has the right to initiate a procedure, not necessarily through ‘proposals’, but also through ‘recommendations’, ‘opinions’, ‘initiatives’. ³⁷ The Commission, through its website, ³⁸ which however contained a disclaimer of having no binding force, provided that the Commission is empowered to propose a legal act of the Union in the sense of Article 11(4) TEU when an article of the Treaties refers to a legislative procedure (‘ordinary legislative procedure’ or ‘special legislative procedure’), except in specific cases where the article provides otherwise (that is, it specifically mentions that an institution other than the Commission makes the proposal) or the article explicitly mentions that the Commission is responsible for making a proposal. It can be concluded from this that the Commission interpreted Article 11(4) TEU as referring only to formal Commission proposals, thus restricting its possible scope of application.

This interpretation was further elaborated in its response to the initiative Stop TTIP, in which the organisers requested the Commission to withdraw its recommendation to the Council to authorise the opening of negotiations for the Transatlantic Trade and Investment Partnership (TTIP). More specifically, the Commission supported the view that Article 11(4) TEU refers only to formal Commission proposals leading to the adoption of final acts of the Union producing legal effects vis-à-vis third parties and thus excludes Commission recommendations which aim at the adoption of preparatory acts by another institution producing effects only among the institutions, such as the Council decision authorising the opening of negotiations. ³⁹ This Council decision adopted on the basis of Article 218(3) TEU was perceived by the Commission as a preparatory/intermediate act; the final act of the procedure leading to the adoption of an international agreement would be the Council decision authorising the Commission to conclude the agreement.

The General Court, which was seized by the organisers of the Stop TTIP initiative, ruled that citizens could also invite the Commission on the basis of Article 11(4) TEU to submit recommendations for any act of the Union, including acts which deploy legal effects only among institutions, since the provision of the Treaties does not contain any indication to the contrary. ⁴⁰ This conclusion was reinforced by the argument that the Council decision authorising the opening of negotiations constitutes a decision in the sense of Article 288 TFEU and thus an ‘act of the Union’ in the meaning of Article 11(4) TEU. ⁴¹ It is important to note that the General Court used the principle of democracy as a guiding principle when interpreting the legal framework. This principle requires, according to the judgment, a broad interpretation of the term ‘legal act of the Union’, so as to enable citizens’ participation in all legal acts which seek to modify the legal order of the Union, such as the acts preparing the conclusion of an international agreement. ⁴²

It follows from this judgment that the General Court interpreted the term ‘proposal’ for an act of the Union, as used in Article 11(4) TEU, in a ‘non-technical’ way and beyond the limits of Article 17(2) TEU, thus including also Commission recommendations or possibly other acts, with which the Commission gives its opinion to another institution for the adoption of any legal act of the Union. This broad interpretation of the term ‘proposal’ could also be based on the wording of Article 11(4) TEU which refers to ‘any appropriate proposal’ by the Commission, leaving the specific instrument open. It is interesting to note that the wording of Regulation (EU) No 211/2011 appears to be more restrictive in this sense referring to ‘a proposal’ by the Commission and not ‘any appropriate proposal’ as in primary law (emphasis added).

3. Required for the purpose of implementing the Treaties

The last requirement as regards the admissibility of citizens’ initiatives deriving directly from primary law is that citizens invite the Commission to propose an act of the Union which is required for the purpose of implementing the Treaties [emphasis added]. From this part of Article 11(4) TEU two questions arise: firstly, whether the wording ‘to propose an act which is required’ implies that citizens’ initiatives shall aim at a positive contribution or whether they could propose also the non-action of the institutions; secondly, whether the wording ‘for the purpose of implementing the Treaties’ excludes the possibility for citizens’ initiatives to propose Treaty amendments or not. These two aspects concerning the admissible object of citizens’ initiatives will be further explored.

(a) Proposal of negative acts?

The question whether an initiative needs to aim at the adoption of a new act or whether it suffices if it aims to block an ongoing procedure or to withdraw an existing act, arose in the case of the initiative Stop TTIP. The organisers of this initiative invited the Commission to issue a new recommendation to the Council advising it to repeal the negotiating mandate for TTIP. The Commission supported the view that the signature and conclusion of an international agreement with a given subject and content may be requested by a citizens’ initiative. Negative acts may also be the object of citizens’ initiatives, but only if they seek to amend or repeal existing acts, because Article 11(4) TEU provides that initiatives should aim at the adoption of an act required for implementing the Treaties. For this reason, according to the Commission, it was not possible for citizens to reunite in order to stop the institutions from acting for the first time. ⁴³ On the basis of these arguments, the Commission declared the Stop TTIP initiative inadmissible for registration. It has been argued that the Commission showed inconsistency with this decision of non-registration, because in the past it had accepted registration of initiatives aiming at the issuance of ‘negative acts’, such as abrogation of Directives. ⁴⁴ However, this is not entirely accurate, since the Commission’s justification for rejecting the Stop TTIP initiative was that it is not possible to aim with an initiative at stopping the institutions from acting for the first time.

Following an action for annulment of the Commission’s rejection, the General Court ruled that the objective of participation in the democratic life of the Union pursued by the mechanism of the European Citizens’ Initiative manifestly includes the power to request the amendment or withdrawal of legal acts, such as the Council decision authorising the opening of negotiations with a view to concluding an international agreement. Acts whose object is to prevent the signing and conclusion of such an agreement produce, according to the General Court, independent legal effects by preventing, as the case may be, an announced modification of European Union law. ⁴⁵ The General Court also noted that, were the Commission’s opinion to be followed, the absurdity would be that citizens would have to await the conclusion of an international agreement, so as to be able to invite the institutions to end it. ⁴⁶

Here the case-law seems to extend the wording of primary law with a view to strengthening participatory democracy and enabling citizens to have a say in ongoing actions by the EU-institutions. With this landmark judgment, the General Court enabled effective citizen participation in the field of international relations and more concretely in the context of the conclusion of international agreements. ⁴⁷ It therefore constitutes an important step towards strengthening the instrument of the European Citizens’ Initiative. However, it is a fact that the lengthy procedure of a citizens’ initiative is not meant for quick reactions from citizens capable of ‘blocking’ ongoing procedures. This is also confirmed in the example of the Ban Glyphosate initiative, in which case by the time the initiative gathered one million signatures (October 2017) the Commission had already made a proposal in favour of renewing glyphosate to the Member States’ representatives (May 2017). ⁴⁸ Therefore, unless the Commission provides for a possibility of a ‘fast track procedure’, it is difficult to imagine that a citizens’ initiative could successfully constitute a (political) hindrance to the ongoing actions by the EU institutions, since the gathering of signatures has no suspensive effect.

(b) Proposal of Treaty amendments?

The second element which derives from the phrase ‘required for the purpose of implementing the Treaties’ (emphasis added), as contained in Article 11(4) TEU, is that citizens’ initiatives are based on the existing Treaties. It is implied from this that the Commission, if it decides to follow the citizens’ invitation and propose a legal act of the Union with the content of the initiative, has to find an adequate legal basis in the existing Treaties. When there is no legal basis in the Treaties for a legal act of the Union which would cover the subject matter of a proposed citizens’ initiative, then this initiative does not aim to ‘implement’ the Treaties, as required by Article 11(4) TEU, but to amend them. ⁴⁹ This interpretation has been followed so far by the Commission. ⁵⁰

Contrary to the Commission’s interpretation line, academic commentators have argued that Treaty amendments constitute a form of Treaty implementation, because they are based on the revision mechanisms provided in the TEU. ⁵¹ However, this interpretation cannot be fully supported by the wording of Article 11(4) TEU, which provides that the successful outcome of a citizens’ initiative would be a Commission’s proposal for a ‘legal act of the Union’. An ordinary Treaty revision does not qualify as a ‘legal act of the Union’, since it constitutes a new Treaty which needs to be ratified by all Member States. ⁵² A way to circumvent this interpretation hurdle could be to invoke that the Commission proposal for a Treaty amendment leads to an intermediate decision of the European Council, which indeed qualifies as an ‘act of the Union’ in the meaning of Article 11(4) TEU. However, this interpretation would distort the wording of Article 48(2) TEU which clearly states that the object of the Commission proposal concerns the amendment of the Treaties and not the adoption of an act by the European Council.

For these very reasons, the interpretation followed so far by the Commission excluding initiatives that would require Treaty amendments is justified by the wording of the Treaties. A final argument which reinforces this interpretation line is that, were initiatives without a legal basis in the existing Treaties to be accepted, then the whole admissibility mechanism would have been superfluous.

B. Modalities of the admissibility control

The admissibility test introduced by Regulation (EU) No 211/2011 implements in essence the legal filter embodied in the primary law provision of Article 11(4) TEU, as analysed above. However, the primary law provision leaves it open exactly when the Commission needs to check the admissibility of the initiative and more specifically, whether this check shall take place before or after the collection of signatures.

1. Timing of the control

Upon adoption of Regulation (EU) No 211/2011, the Commission had initially proposed that the organisers of an initiative should first collect one third of the total required number of signatures (300,000 out of total of one million) after which the admissibility of the initiative would be checked. ⁵³ The rationale of putting the admissibility control at an intermediate stage, neither at the very beginning nor after all the necessary signatures are collected, was to strike a balance between two aims: on the one hand, the aim of checking the admissibility at a relatively early stage, so as to avoid waste of resources as well as frustration among citizens who have signed up to successful but ultimately inadmissible initiatives.

On this point, it should be noted that the authorities of Member States are required to check the validity of all signatures of support (see Article 8 of Regulation (EU) No 211/2011). It was thus intended to avoid using public resources to carry out checks for initiatives that ultimately would not be admissible. These considerations are in line with the principle of good administration. ⁵⁴ On the other hand, by allowing registration of all initiatives at the very beginning, public debate on European issues would be promoted, even if an initiative is later found not to fall within the framework of the legal powers of the Commission. This argument takes into account the importance of participation as one of the pillars of Union democracy.

The European Parliament, however, did not favour placing the admissibility test at an intermediate stage, advocating that it is important for reasons of legal certainty that citizens know from the outset whether their initiative falls or not within the Commission’s competences. It thus amended the proposal accordingly during the first reading and placed the admissibility control before registration of an initiative. ⁵⁵

Academic commentators have pointed out that, had the admissibility check been placed at the end of the procedure, this would have shifted the burden of finding an adequate legal basis to the Commission and would have thus been more protective for the initiators. ⁵⁶ However, the conscious choice of the co-legislators to place the admissibility control at the outset of the procedure reflects the nature of the citizens’ initiative as an instrument which can lead to formal proposals of Union acts and not as a mere tool to provoke public debate. ⁵⁷ As already stated above, the Treaties provide also for other instruments of participatory democracy which enable exchange of views with the institutions (Article 11(1)-(3) TEU). Given the difference in the possible outcome between the other mechanisms of participatory democracy and the European Citizens’ Initiative, it is important that organisers are aware, before investing effort and time in gathering signatures, whether their subject matter can indeed lead to a formal proposal for a Union act. This solution thus preserves legal certainty and offers the initiators assurances for the suitability of their chosen subject matter from the outset.

2. Depth of the control

The choice of the legislator to place the admissibility control at the beginning of the procedure had to be complemented by softening the density of the control. In order to implement this softening, Article 4(2)(b)) of Regulation (EU) No 211/2011 requires that an initiative does not manifestly ⁵⁸ fall outside the framework of the Commission’s powers (emphasis added), thus inserting the term ‘manifestly’ to the condition enshrined in Article 11(4) TEU. The reason for this discrepancy is that Article 11(4) TEU refers to the final Commission proposal, every aspect of which necessarily needs to fall within the Commission powers, whereas the Regulation refers to the registration of the subject matter of the initiative before the organisers start collecting signatures.

The exact meaning of the term ‘manifestly’ is at least prima facie unclear. ⁵⁹ In case Izsak and Dabis v. Commission, the General Court ruled that the Commission must carry out an initial assessment of the information at its disposal in order to determine whether the proposal in dispute does not manifestly fall outside the framework of its powers, given that a more exhaustive assessment is provided for in the event of registration of the proposed initiative (emphasis added). ⁶⁰ This interpretation was reiterated by the General Court in case Constantini and others v. Commission ⁶¹ , although in the same judgment it is also mentioned that the organisers of an initiative should provide enough elements for the Commission to be able to make a detailed assessment of the initiative (emphasis added). ⁶² This line of case law leaves unclarity as to how detailed the initial assessment should be, since an exhaustive control will follow at a later stage, thus not providing a comprehensive interpretation of the term ‘manifestly’ and of the depth of the admissibility control.

The meaning of the term could be approached by striking a balance among the different principles of primary law which are here at stake. ⁶³ On the one hand, the principle of participatory democracy requires that the secondary law giving effect to a primary law right of participation does not make this right dependent on conditions which render its exercise in practice too difficult or burdensome. ⁶⁴ The secondary law should thus preserve the effet utile of primary law. On the other hand, registration of an initiative equates to a confirmation by the Commission that its subject matter does not, at least not manifestly, fall outside of the Commission competences to propose a legal act. This means, that the Commission has to be able to classify under the Union’s and its own competencies at least the main aim of the initiative. In other words, (at least) for the essence of the initiative the adoption of a legal act of the Union should not be excluded.

This interpretation is also in conformity with the principle of legitimate expectations, in the sense that after successful registration of an initiative both the organisers and the signatories have the belief that an act of the Union on the matter of the initiative is legally not excluded. ⁶⁵ It can be therefore concluded that an initiative does not manifestly fall outside the framework of the Commission’s powers, when, for all its main aims which are registered, a legal act of the Union is possible. The Commission should therefore not be allowed to declare inadmissible at a stage following the collection of signatures central aims of the initiative which were part of the registered content.

3. Partial admissibility

The depth of the control is reflected on the Commission’s justification upon acceptance or refusal of registration of an initiative. The judgment of the General Court in the Minority SafePack case reinforced the Commission’s obligation to state reasons upon the rejection of a proposal, especially with a view to enabling a possible resubmission. More specifically, before this judgment, when the Commission had to assess an initiative containing a mixture of admissible and non-admissible elements, it accepted or rejected the initiative depending on the extend of the non-admissible parts, without however clarifying the admissibility of each different element in its decision. ⁶⁶ This practice can be better illustrated with the help of two examples.

The initiative Right2Water had as its principle aim to improve the quality of water and to promote universal access to safe drinking water, but also to exclude the public service of water provision from internal market rules and liberalisation. The latter aim concerning the public service of water provision was found by the Commission not to fall under the Union competencies ⁶⁷ only after the initiative had attained one million signatures, ⁶⁸ whereas initially the initiative was found admissible by the Commission without specifying any non-admissible parts.

The opposite occurred in the case of the initiative Minority SafePack. In this case the Commission refused registration of the whole initiative, because the main object did not fall within Union competencies, while however acknowledging that some of the elements could have been admissible. With its judgment, the General Court annulled the Commission’s decision with which registration of the initiative Minority SafePack was refused on the formal grounds of lack of justification that the Commission did not specify which elements of the initiative where admissible and which not (incomplete statement of reasons). ⁶⁹

The General Court left open the legal consequences of partial admissibility. ⁷⁰ Two different options seem to be possible, namely that partial admissibility leads to full rejection if the inadmissible content constitutes the essence of the initiative, or to partial registration if the content is indeed separable. As for the possibility of partial registration, it could also be argued that this should not be decided alone by the Commission, but that the latter should confer with the organisers whether they consent to partial registration.

The Commission’s practice following the judgment in case Minority SafePack shows that, from this point onwards, the Commission identifies the elements of the initiative on which it could make a proposal for an act of the Union and accepts registration only for these parts. ⁷¹ This evolution is welcome and indeed enables the registration of more initiatives, while respecting the principle of conferral of Union powers. Furthermore, partial registration takes better account of the principle of legitimate expectations, since the registered initiative is cleared from its inadmissible parts and therefore both the organisers and potential signatories have this way an accurate picture of what they can achieve through their initiative.

The adverse effects of not having this ‘clearance’ of content already with the registration can be understood bearing in mind the aforementioned example of the initiative Right2Water, which was registered without any reservation, although it contained among others the non-admissible aim of excluding the public service of water provision from internal market rules and liberalisation. By maintaining this non-admissible part in the content of the initiative that was open for collection of signatures, the Commission raised false hopes to both the organisers and the signatories that it could ultimately propose an act to exclude a public service from internal market rules. For this reason, after having collected the necessary signatures, the organisers reproached the Commission for not taking adequate follow-up action to their initiative as regards their request for exempting the water provision from internal market rules, although no proposal could be lawfully made on this part of the initiative. ⁷² Also in academic literature there has been criticism on the Commission’s allegedly inadequate follow-up on this point, ⁷³ although the real problem was the creation of false expectations from the outset.

In order to illustrate this misconception even more, it is recalled that the then Internal Market Commissioner Michel Barnier, when he removed water services from the so called ‘Concessions Directive’, ⁷⁴ underlined that this did not mean that a public service can be validly excluded from internal market rules or from liberalisation, making an explicit reference to the initiative Right2Water and the wrong impression created to citizens. ⁷⁵ Whether to liberalise or not a public service remains a sovereign decision of Member States and only if they decide to do so, the Union law requires respect of certain primary law principles as regards carrying out the public tender. This means that if a Member State decides – on its own – to privatise its water provision, the public tender would need to respect inter alia the principle of transparency and non-discrimination even if the ‘Concessions Directive’ is not applicable per se. ⁷⁶

This example illustrates the importance of clearing the admissibility of the main aims of an initiative from the outset. Otherwise, the early admissibility check loses its rationale. It is therefore concluded that the Commission, after it has decided on the full or partial registration of an initiative, should not be able to come back to admissibility issues, at least for the main aims of an initiative, after the organisers have gathered the necessary number of signatures. This conclusion adds further clarity to the interpretation of the term ‘manifestly’, as analysed previously. ⁷⁷

Respecting legitimate expectations and legal certainty, as the positive effects of early admissibility clearance, can however be achieved in practice only if the content of the initiative which is registered in the official Commission register (public website) is adjusted to the Commission’s decision accepting only part of the initiative. Currently, the Commission website continues to feature the initial content of the initiatives without any adjustment following their partial registration. ⁷⁸ Even though the website contains a non-responsibility disclaimer for the Commission, this could still have the negative effect of creating false expectations to the signatories of the initiative who will sign the initiative on the basis of the content featured on the website without looking concretely into the Commission decision of registration.

3. The Commission proposal on a new regulation

On 13 September 2017, the symbolic day of the state of the Union speech in which European Commission President Jean-Claude Juncker advocated inter alia for involving the civil society more in the work on the future of Europe, ⁷⁹ the European Commission adopted a proposal for a new Regulation on the European Citizens’ Initiative. ⁸⁰ Improving the functioning of the European Citizens’ Initiative is part of the Commission’s agenda for a more united, stronger and more democratic Europe (Commission Work Programme 2018). According to its recitals, the new proposal aims to render the current legal framework more user friendly and accessible for citizens, in order to achieve the full potential of this mechanism as a tool to foster debate and citizen participation at Union level. ⁸¹

As regards, specifically, the admissibility control of initiatives by the Commission, the essence of the test and its conditions remain the same. More specifically, the timing of the admissibility control, placed before the collection of signatures, has been retained. As analysed above, ⁸² this choice may indeed restrict the number of initiatives becoming the subject of a European debate, ⁸³ however, it is a proportionate restriction, which prevents the organisers from investing time and effort in an inadmissible initiative. The wording of the Regulation regarding the depth of the Commission’s control has also remained the same, which is unfortunate, since, as aforementioned, ⁸⁴ the phrase that the initiative must ‘not manifestly fall outside the framework of the Commission’s powers to submit a proposal’ (emphasis added) has created interpretation difficulties and could have been improved with a view to achieving more clarity. ⁸⁵

The proposal offers thus no additional guidance as regards the material scope of a European Citizen’s Initiative and the depth of the admissibility control. ⁸⁶ However, it addresses the current problem of many initiatives being found in practice inadmissible, by reinforcing the assistance offered to organisers and by formalising the possibility of partial registration of an initiative.

1. Reinforcement of assistance to organisers

The current Regulation provides that the Commission should, upon request, provide citizens with information and informal advice, notably as regards the registration criteria. ⁸⁷ In order to implement this obligation, the Commission has established a point of contact through which it answers questions from potential organisers. However, this type of assistance in the form of simple answers to queries has proven so far inadequate to help organisers understand the competencies of the EU and submit admissible proposals. It is for this reason that the European Ombudsman in its recommendations of 4 March 2015, following an own-initiative inquiry, called on the Commission to engage more with organisers and offer more active assistance to allow them to clarify and define the objective of their initiatives. ⁸⁸ The importance of providing appropriate and comprehensive (legal) guidance to organisers early in the process was reiterated also by the European Parliament in its resolution of 28 October 2015. ⁸⁹

Taking into account these recommendations, the proposal for a new Regulation dedicates a whole article to the provision of information and assistance to organisers, compared to only a single sentence in the current Article 4(1) of Regulation (EU) No 211/2011. According to the draft Article 4, the Commission should make available an online collaborative platform to provide a dedicated discussion forum and information as well as advice about the European Citizens’ Initiative. ⁹⁰ The novelty compared to the current Regulation is that, in order to ensure proximity to citizens, Member States are also required to establish one or more contact points in their respective territories to provide with information and assistance regarding the European Citizens’ Initiative. ⁹¹

The proposed provisions are in the right direction towards providing better assistance to organisers. If these mechanisms work in practice, it can be expected to end up with fewer rejected initiatives at the stage of registration. Assisting the organisers at an early stage so as to achieve fully fledged and admissible initiatives with a good chance of later success gives better effect to the principle of participatory democracy than allowing easy registration but blocking initiatives after the collection of signatures because of (partial) lack of admissible content, as in the aforementioned example of the initiative Right2Water.

With a view to achieving the full potential of the European Citizens’ Initiative, the Commission’s assistance to organisers should go beyond mere guidance on admissibility and take more proactive forms. For instance, the Commission could even facilitate synergies, bringing together organisers of initiatives with a similar content, so as to avoid duplication and unnecessary scattering of signatures. An illustrative example are two initiatives with an almost identical content, which were aiming at securing the rights of citizens whose countries withdraw from the Union and which were running in parallel. ⁹²

2. Formalising partial registration

Allowing partial registration of initiatives featuring certain admissible elements was one of the recommendations contained in the resolution of the European Parliament of 28 October 2015. ⁹³ The Commission started registering initiatives partially following the judgment of the General Court in case Minority SafePack, as analysed above. This recent practice is now crystallised in Article 6(4) of the draft Regulation.

According to the draft provisions, the Commission will continue to have two months in order to check the admissibility of the initiative. However, if it considers that all the other requirements are met, but that the whole or parts of the initiative manifestly fall outside of the Commission’s powers, it shall, within one month of the submission of the request for registration, inform the group of organisers of its assessment and of the reasons thereof. In that case, the organisers have to choose among three options within one month: (a) to amend the initiative taking into account the Commission’s assessment, (b) to maintain the initial content or (c) to withdraw the initiative. Following the notification of the organisers’ decision, the Commission has one more month to react and (a) to fully register the initiative if now the whole initiative does not manifestly fall outside its powers to propose a legal act of the Union, (b) to partially register the initiative if a substantial part of the initiative, including its main objectives, does not manifestly fall outside its powers or (c) to refuse to register the initiative.

As regards the material scope of partial registration, the wording of the Commission’s proposal is likely to create new interpretation difficulties as to what constitutes the ‘substantial part’ of the initiative which may be partially registered, if it does not manifestly fall outside the Commission’s powers. It is therefore welcome that the European Parliament at first reading has simplified the wording of the draft provision by eliminating the term ‘substantial’ and thus allowing any admissible part to be registered without any need to determine whether it is substantial or not. ⁹⁴ In any event, since the organisers have to consent to the partial registration, they may object or withdraw the proposal, if the content of the partial registration does not correspond any more to their principal objectives.

From a procedural point of view, the proposed mechanism of interaction between the Commission and the organisers is of major importance, because it will allow organisers to know in advance the Commission’s position on the admissibility of their initiative, so as to adjust the content accordingly in order to achieve successful registration. Currently, such exchange of views and clarifications regarding the content of the proposal appears to happen for the first time before the General Court, when the organisers challenge the non-registration of their initiative. This situation has been hampering effective democratic participation and is considered not to be in line with the principle of good administration. ⁹⁵ It is thus welcome that the draft Regulation has included an administrative phase of exchange of views between the Commission and organisers.

The draft Regulation also provides that, when partial registration takes place, the organisers shall ensure that potential signatories are informed of the scope of the registration and of the fact that statements of support are collected only in relation to the scope of the registration of the initiative. ⁹⁶ This provision is also of major importance towards achieving transparency and clarity about the final admissible content of an initiative, since, as already mentioned, organisers currently do not adjust the information provided in the official Commission register following a partial registration.

The obligation of organisers to inform accurately potential signatories should also apply, when the Commission ‘requalifies’ an initiative, so as to shape it in a way that falls within its powers. This was the case with the recent initiatives EU-citizenship for Europeans and Retaining European Citizenship, ⁹⁷ both of which in essence advocated that EU citizens whose countries withdraw from the Union should be able to retain their rights and status of EU citizen. In both cases, the Commission noted that it cannot propose an act of the Union aiming at granting the citizenship of the Union to persons who do not hold the nationality of a Member State. However, it accepted registration of the initiatives based on the understanding that they aim at ensuring that following the withdrawal of a Member State its citizens continue to benefit from similar rights as compared with EU citizens. ⁹⁸ Also in such cases of ‘requalification’ of the content of an initiative, organisers should adjust the published content of the initiative and even its title. In accordance with the principles of transparency and good administration, the Commission should also ensure that all information appearing in its official register corresponds to the exact scope of the registered initiative.

4. Conclusions

The regulation and application of the admissibility conditions of the European Citizens’ Initiative has proven to be a difficult balancing exercise. With two important judgments, in cases Stop TTIP and Minority SafePack, the General Court made clear that the principle of participatory democracy is the normative yardstick against which the interpretation of the legal framework is measured.

The exact effect of this principle seems to be different in two categories of cases. When an initiative falls clearly within Union competencies, as for instance in the case Stop TTIP, the interpretation of the admissibility test should, in the light of the principle of participatory democracy, enable participation in as many situations as possible, ⁹⁹ on the self-evident condition that this does not interfere with other Treaty provisions.

On the other hand, when it is unclear whether an initiative falls or not within Union powers, a broad interpretation of the Union competencies would collide with the principle of conferral. Furthermore, not clearing from the outset admissibility issues might interfere with the principle of legal certainty or legitimate expectations, if citizens rely on the admissibility of the content of an initiative, while the Commission after the collection of signatures denies any possibility of action due to lack of competence, as it occurred in the case of the initiative Right2Water. For this reason, this article argues that admissibility issues regarding the main purposes of an initiative should be cleared before registration and that the Commission should not be able to come back to these issues after the collection of the necessary number of signatures. In this category of cases containing both admissible and non-admissible parts, the effet utile of democratic participation is preserved through cooperation mechanisms and procedural guaranties. With the judgment in case Minority SafePack, the General Court imposed a high threshold of justification on the Commission when assessing such ‘mixed’ initiatives, with a view to enabling resubmission of rejected initiatives or possibly partial registration.

This judgment demonstrated how duties deriving from the principle of good administration, such as the duties to assist and provide reasons, secure the effectiveness of citizens’ participation. Since this judgment, the Commission has shown commitment to better implement these duties by engaging more actively with the organisers and enabling partial registration. Its proposal on a new Regulation on the European Citizens’ Initiative crystallises this recent practice and focuses on offering more assistance and interaction with organisers towards rendering this instrument more accessible and user friendly.

Assistance and engagement with the organisers should however not end with the registration of the initiative. A point which is enshrined in the draft Regulation, but is so far overlooked in practice is the adjustment of the scope and of the publicly available content of an initiative following its partial registration or requalification of its object by the Commission. Maintaining inadmissible content in the Commission register and on the webpage of the organisers is not in conformity with the requirements of transparency and legal certainty and could diminish the credibility of the instrument of citizens’ initiatives in practice. The responsibility both of the Commission and the organisers is hereby triggered, showing that instruments of participatory democracy need to be cherished by the institutions, but also by the involved citizens themselves, in order to achieve their full potential.