By James Organ
The European Citizens Initiative (ECI) is an agenda-setting tool that gives EU citizens an opportunity to directly influence EU policy. There were high expectations of the ECI enhancing EU democracy when launched in 2012, but only 3 ECIs have so far managed to collect the one million signatures needed to request the Commission to propose a legal act of the Union. EU citizen appetite for direct democracy remains strong, however, and there has been a recent resurgence in the ECI. The number of new initiatives has increased – including last week an ECI aiming to strengthen EU citizenship in the face of Brexit – and new ECIs are being strongly supported, with the Ban Glyphosate ECI gathering almost 700,000 signatures in less than 3 months.
The other important area of ECI activity has been in the General Court where citizens are challenging the Commission’s restrictive approach to ECI registration: almost 40% of ECIs rejected to date. The first three judgments upheld the Commission’s registration decisions, but in the Minority Safepak case ECI organisers successfully challenged a Commission ECI registration decision for the first time. Published last month, the Court decision itself was only a minor, narrow victory for the ECI that left many questions still to be answered in its on-going legal saga. However, following last week’s surprising Commission response to the judgment, the annulment of the Commission’s decision to refuse registration of the Minority Safepak ECI could yet be a landmark decision in defending EU citizens’ rights of democratic participation and direct democracy in the EU.
Minority Safepak Judgment
The Minority Safepak initiative proposed a range of measures “to improve the protection of persons belonging to national and linguistic minorities and strengthen cultural and linguistic diversity in the Union.” The Commission refused to register the ECI because it “consider[ed] that there is no legal basis [to] allow the Commission to present a complete set of proposals for the ‘Minority Safepak’.” In other words some aspects of the initiative were manifestly outside the framework of the powers of the Commission to propose a legal act.
Minority Safepak organisers legally challenged the Commission decision on two grounds. First because the Commission had not sufficiently explained why their ECI proposal was not registered, or which parts of the initiative were admissible. Secondly, the organisers claimed the initiative proposals were within the powers of the Commission to propose a legal act and so should have been registered, and that if the Commission considered some aspects of the ECI proposal to be manifestly outside their powers, the rest of the initiative, as requested, should be registered. The Commission accepted that some measures in the ECI proposal were within its powers to propose a legal act of the Union, but decided to interpret EU law as not allowing the Minority Safepak ECI registration.
The General Court annulled the Commission decision to refuse to register the Minority Safepak ECI on the basis of the first of the organiser’s claims: “[The Commission] decision manifestly does not contain sufficient elements to enable the applicant to ascertain the reasons for the refusal to register the proposed ECI”. All ECI organisers must able to understand which aspects of their proposal the Commission believes can be registered so that they are in a position to resubmit their proposal if they wish. The Court also reaffirmed the importance of the duty to state reasons to the ECI’s purpose of reinforcing citizenship and the participation of citizens in its democratic life.
The strengthened procedural obligation imposed on the Commission and the reiteration of the ECI’s democratic importance is a victory for the Minority Safepak organisers, but only a small step forward for the ECI. The Commission was not obliged to register the Minority Safepak initiative, and the legality of the reasons for refusing registration were not discussed in court. ECI organisers in the future can expect a lot clearer explanation for any registration refusal and will more easily be able to adapt proposals for resubmission, but the Court’s decision does not necessarily increase the likelihood of registration, or challenge the Commission’s restrictive interpretation of the ECI registration criteria. The Court also left (at least) two important questions unanswered.
First, there was no consideration of the organisers claim that there was a legal basis for all aspects of their proposal. The Court stated that this was precluded by a lack of information. The three previous ECI judgments all approved the Commission’s approach to assessing legal bases. The Minority Safepak judgment does nothing to clarify the key point of whether the Commission is justified in its interpretation of the threshold that citizens need to reach to meet the registration criteria. I have described the Commission’s interpretation elsewhere as organisers needing to establish that a proposal is clearly within the powers of the Commission, rather than the lower threshold that a proposal must not be manifestly outside. This reduces the scope for ECI proposals and increases the burden on ECI organisers for legal expertise.
Secondly, the Court did not rule on the Commission’s interpretation that no part of an ECI proposal can be registered when some aspects are deemed inadmissible. The Court again stated that the lack of information precluded this; particularly the fact that the Commission gave no indication of which parts of the initiative did not meet this criteria. There is no provision in the ECI Regulation that states that an initiative cannot be registered in part, or that alteration of the proposal and resubmission cannot be suggested. Despite this, and contrary to the clearly expressed wishes of the organisers, the Commission decided in 2013 that partial registration was not possible. Again, this decision limits the scope of the ECI, increases the burden on ECI organisers, and acts as a barrier to citizen participation.
The Court judgment only obliged the Commission to give further explanation for its decision, but they responded last week by registering the Minority Safepak ECI without requiring modification of the proposals. The Commission stated in its press release: ‘While 2 of the 11 acts [proposed by Minority Safepak] manifestly fall outside the framework of the Commission’s power to propose legislation, 9 of them do not. Statements of support may therefore be collected on the basis of these 9 proposals’. This registration decision overturns the Commission’s previously held, more restrictive policy and means that partial submission of an ECI is now possible. As a result, almost four years after they first submitted their ECI, the Minority Safepak organisers can now proceed to collect support for their proposals.
The Commission’s defence of its ECI registration policy in the Minority Safepak and other ECI cases has given the impression that the Commission does not sees its role as one that should facilitate registration of an ECI to enable citizen participation and policy deliberation. Instead ECI registration has been viewed as a purely legal test to verify whether the initiative proposals have met the high threshold the Commission has set for ECI registration. However, since the last significant ECI registration refusal, 18 ECIs have been registered. Some registrations were surprisingly deemed to be within scope of the ECI Regulation, and there was even a court application to annul a decision to register an ECI. This less restrictive approach to ECI registration, coupled with the swift, unmodified registration of the Minority Safepak ECI last week, makes it appear that the Commission has started to recognise more strongly the value of the ECI, and has decided to lower the legal threshold for ECI registration.
The next instalments in the ECI legal drama are eagerly anticipated: the publication of the Stop TTIP judgment, the ‘Anagnostakis’ and ‘Izsak and Dabis’ appeals, and the ‘One of Us’ challenge to the Commission response at the end of the ECI process. In the Minority Safepak case, we have the first successful challenge of a Commission ECI decision and a small, procedural Court victory for EU citizen participation, surprisingly strengthened by the Commission response to the judgment. The increased duty to explain decisions, and the change in Commission policy that allows partial submission of an ECI are welcomed, but questions remain unanswered and the ECI still needs substantial legislative revision, if it is to fully achieve its potential to enhance the democratic life of the EU.