The European Citizens’ initiative: too much democracy for EU polity?

Abstract

This Article analyzes the state of democracy in the EU through the study of the European Citizens’ Initiative. The European Citizens’ Initiative (ECI) represents one of the main ways the European institutions chose during the making of the European Convention, and then reproduced in the Lisbon Treaty, to beat populism by bringing decision-making closer to the citizens and promoting a new legitimization of Europe’s political unity. This Article starts by arguing that if one wants to understand European versions of populism it is necessary to pay attention to the reason why “democratic deficit” and “Euroscepticism” are predominant problems that the European Union is facing. It then analyzes the implementation of the ECI and the main issues of this instrument of democratization pointing at three flaws: a) the problem of e-democracy; b) the difficulty of stimulating large participation of civil society and people for the purposes of the ECIs; c) the cumbersome role of the EU Commission and the difficulties to ensure a real participatory instrument for the European citizens. From the analysis of the ECI this Article first advocates for a more robust public sphere in Europe as indispensable ground for a supranational democracy; second, it supports the revision of the ECI procedural aspects to transform it into a viable channel for amending EU policies in a more democratic way; third, this Article participates in the debate over the brand of democracy most suited to EU governance and polity.

A. Introduction

The European Union’s “democratic deficit” is undeniable, without any mention of the arguments one can found in the vast literature on this topic.¹ In the context of the EU, with which this Article is predominantly concerned, the deficit of popular support has frequently been taken as one of the main obstacles on the road towards “an ever-closer union among the people of Europe,”² as the original motto predicted, sketching the transformation of the Communities into something more than just a model of economic and political governance or a successful example of globalization.³

Today, the tolerance of a not-completely democratic Europe is at its lowest level since the beginning of the twenty-first century.⁴ The crisis of the Eurozone and, in turn, the unwilling acceptance of austerity measures, the populist backlash, and the reshuffling of global power in the Trump era have alarmed politicians and academics alike across Europe.⁵ The fear of an imminent end of a Europe consisting of people living in peace and prosperity lingers in the corridors of power in many European nations.⁶ The intensity of clashes between pro and anti-European leaders is fostering some critical self-reflection in the EU and providing an impetus to fix some of the “constitutional mistakes” made during the last thirty years.⁷

Indeed, by taking democratic legitimacy for granted and inviting us to surrender to what will end up being imposed (e.g., the homework given to the most indebted states), EU integration, as a process established from the top down, has had a corrosive effect on European polity,⁸ delegitimizing the very idea of Europe’s political unity,⁹ and at the same time contributing to the growing spread of anti-EU populist movements.¹⁰ Because of the evident deficiencies of the European project, the only powerful narratives that seem to be standing are populist rebuttals fed by the evil game of “blaming Brussels” and—above all—by the conclusion that EU institutions are democratically delegitimized and not more able to ensure basic public goods—such as employment, security, currency, etc.¹¹

Now that an impasse has been reached and the next elections for the European Parliament are closer, the conclusion is stark: If the EU wants to survive and re-present itself as a credible and attractive shared project, a complete turnaround in the legitimacy underlying European governance is necessary. Namely, one that allows a reform of processes and structures that would replicate, at the European level—even with the imperfect practice of governmental control—the principles of parliamentary accountability, administrative accountability, and citizens’ participation, which are the norm in various Member States.¹² Only the creation of a more democratic environment and the combined effect of a new public sphere that bridges the gap between the national and the European political realms would help the European Union to be more democratic, intelligible, pluralistic, and tolerant.¹³ The challenge lies in “creating a democratic space within which the Member States’ citizens of diverse cultural, political and historical backgrounds and identities may see themselves as part of the same supranational democracy.”¹⁴

One answer to the quest for a more democratically legitimate Union and fulfilling citizens’ expectations towards political institutions—which are channeled today mainly into the radical message of populists—is surely the increase of participation and the broad access to the deliberative processes.¹⁵ It is under these auspices that the Treaty reform in Lisbon introduced the “European Citizens’ Initiative” (ECI), as an innovative tool to bring the people into the debates of policy and law-making at the EU level by supporting and submitting legislative initiatives to the Commission.¹⁶ The ECI aimed at setting the scene for a new dialogue among political institutions, civil societies, and people in order to “translate the social realm shaped by citizens making use of their rights and freedoms… into a political will.”¹⁷

This Article, thus, will investigate the major problems of the EU democratic fabric through the study of the implementation of the ECI, considering it one of the main ways the European institutions chose during the making of the European Convention, and then reproduced in the Lisbon Treaty, to beat populism by bringing decision-making closer to the citizens and promoting a new legitimization of Europe’s political unity.¹⁸ From the analysis of the ECI, this Article first argues for reinvigorating the European public sphere; second, it supports the revision of the ECI procedural aspects in order to transform it into a viable channel for amending EU policies in a more democratic way; third, it participates in the debate over the particular brand of democracy most suited to EU governance and, therefore, is capable of tackling the regressions and even the possibility of European disintegration.¹⁹

B. European populism, democratic deficit, and Euroscepticism: three elements of an incomplete process

At a time when the various integration legitimacies have been weakened, a time when the European project cannot turn to vigorous achievements or the favor of effectiveness, the only powerful accounts that seem to prevail are Euroscepticism and populist accusation and, above all, the curse that EU institutions are not up to the problems they need to manage.²⁰ From the end of the twentieth century, the EU has been considered to have suffered from a substantial legitimacy crisis, which combines the symptoms of a structural democratic deficit on the one hand and a general lack of solving common problems effectively on the other.²¹ Therefore, if we want to analyze populism at the EU level, we must pay attention to the reason for the democratic deficit and Euroscepticism as predominant narratives for describing the democratic challenge European Union is facing.²² At first sight, the study of these topics leaves scholars with a sense of fuzziness and elusiveness. Today, populism—as an indeterminate anti-establishment logic²³—seems to touch on everything and to be found in every development of the political field at the European level.²⁴ The sense and definitions of the two other expressions above mentioned are narrower but multi-faceted. We speak of “democratic deficit” as a synthesis of the legitimacy flaws affecting the European Communities and now the Union, for example the deficiency of some of the basic features of every parliamentary or representative democracy.²⁵ At the same time, Euroscepticism refers to opposition, either from right or left,²⁶ to some aspects of European integration and the effects of this over time—such as EU enlargement, the austerity measures, or the immigration policy.²⁷

The major issue pertaining to these concepts is the evidence that they do not say anything about why opposition or antagonism exists, what form they should take, to what they should apply, nor to what end. They only register reactions fueled by the belief that democratic systems have not completely responded to the needs and desires of the “real people” or the “silent majority”;²⁸ an opposition to the policies of European institutions and the necessity to disrupt the pillars of the economic, legal, political, and social organization under the project of “an ever-closer Union.”

Actually, the anti-European sentiments, and their consequences in terms of populism or Euroscepticism, suggest the necessity to foster the creation of a European public sphere²⁹ that is both within and across national borders and through which it is possible to establish the right of “an organized opposition to appeal for votes against the government and in elections.”³⁰ In this vein EU integration must evolve, not only opening institutions to their citizens and making them more responsible, but also creating an arena for public debate and giving the right to organize opposition within the system. As Held has alleged “an equal right to liberty and self-development can only be achieved in a participatory society, a society which fosters a sense of political efficacy, nurtures a concern for collective problems and contributes to the formation of a knowledgeable citizenry capable of taking a sustained interest in the governing process.”³¹

The public dimension and the channels of opposition must fit together and for this to be possible, citizens’ behavior and preferences should constitute a formal constraint for policy makers. Decisions at the EU level should be taken by political elites with the complementary help of citizens, and under the eyes of powerful oppositions. If it is impossible to create a public arena in which to hold European governance accountable, people will almost inevitably be thrust into orchestrated antagonism to Europe. Over the last few decades, we have seen that the absence of a European public sphere where people are able to organize opposition in the EU has forced them to organize opposition to the EU.³² This is not a subtle tactic to justify populism or Euroscepticism, but a way to say that we always need places where political conflict emerges and is channeled into institutional life; otherwise, the mobilization of an opposition against EU polity is inevitable, without relevance or distinction between European or national levels. To use the insight of Andrea Simoncini, European constitutionalism is today sustainable only through the existence of a dialogic interaction between a judicial, political, and civic dimension; the latter being the third pillar of a composite “constitutional space” where democracy at both European and state levels exists.³³

The ECI—with its merits and flaws—presents a highly intriguing test case regarding the connection between an institutionalized European civil society system and the creation of channels for criticizing or helping reform EU institutions.

C. Finding a tool to meet populism on its terrain

Insofar as the ECI offers a route for direct popular engagement in policy-making, it potentially responds to populist critique of the EU. As we shall see, however, the operation of the ECI has failed to completely fulfill this promise. After Maastricht and then during the work of the Convention on the future of Europe (2002–2003), European Institutions put great effort into increasing citizens’ participation in supranational activities.³⁴ Various mechanisms of direct citizens’ participation, mostly designed to encourage the work of the Commission, were introduced to educate and inform the public about the most important political decisions in the process of European construction.

In order to create the forms of a more democratic Union, to recognize the pluralism in the EU “constitutional space,”³⁵ and to encourage active cross-border public debates, the Convention introduced the ECI as a new right to enhance citizens’ participation in democratic life (Article I-46(4)).³⁶ This new instrument, the ECI, allowed people to submit proposals to change legal acts of the Union, provided they had the support of at least one million people.

After the failure of the Convention, the new instrument was left on the agenda at the Intergovernmental Conference which was charged with completing the “Reform Treaty.”³⁷ With little debate and slight modification, the ECI passed into both the revised Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The legal basis of the new mechanism for participatory democracy is now set forth in two legal dispositions: Article 11, paragraph 4, of the TEU, which states the substantive aspects of the citizens’ initiative, as it provides for both its scope and its limits,³⁸ and Article 24 of the TFEU, which determines the procedural aspects of the ECI by requiring its implementation by means of a Regulation.³⁹ The application of TEU Article 11, paragraph 4, was quite rapid. Before the new Treaties came into force, the Commission published a Green Paper on a European Citizens’ Initiative.⁴⁰ The document went the same way as the introduction of the ECI into the institutional framework of the EU.⁴¹ A formal proposal for the first legislative regulation envisaged under Article 24 followed several months after the adoption of the Green Paper.⁴² On February 16, 2011, the European Parliament and the Council of the EU adopted Regulation No. 211/2011.⁴³

The new regulation set forth the “threshold requirements” necessary to submit a proposal to the Commission.⁴⁴ It allows promoters of ECIs (Committee) to freely choose the subject of an ECI. The initiative, however, cannot be designed to merely “criticize” policies or action undertaken by the Commission;⁴⁵ it should maintain a “normative purpose” containing the promotion of new laws, the amendment of existing laws, or the repeal of previous legislation.⁴⁶ Importantly, the Commission could either accept or refuse the registration of the proposal.⁴⁷ In the case of rejection, the Commission must inform the representative of the Committee about “the reasons for such refusal and of all possible judicial and extrajudicial remedies available to them.”⁴⁸ If the Commission registers the initiative, a one year limit begins during which the Committee has to gather—either on paper or online—one million statements of support.⁴⁹ Once the statements have been collected, the organizers must submit them to the competent national authorities for verification and certification.⁵⁰

The next step is the submission to the Commission, together with information regarding any support and funding received for that initiative.⁵¹ The Commission is then obliged to examine the initiative, but it is not forced to take any form of action. To support their initiative, the Committees only have the right to present the initiative at the European Parliament during a public hearing. In this phase the Commission retains more discretionary power than in the admissibility phase: It has absolute discretion on how to proceed with an ECI. Article 10, paragraph 1, of the Regulation formally requires that the Commission “(c) within three months, set out in a communication its legal and political conclusions on the citizens’ initiative, the action it intends to take, if any, and its reasons for taking or not taking that action.”⁵² According to Regulation 211/2011, from April 1, 2012 and every three years afterwards, the EU Commission must present a report on the implementation of the Regulation. The first was released in March 2015 and since then many proposals to amend the ECI have been produced.⁵³

Hence, the ECI represents an unprecedented means of transnational democracy, insofar as it seeks to establish the conditions for an additional direct connection between European citizens and EU institutions. The ECI started out with significant expectations from all sides, including policy-makers who saw it as a democratically legitimizing tool to move to a more “democratic Europe.”⁵⁴ This innovation has been seen as being more of an informal rather than a formal tool of democratic participation, and “foreseen as complementary to the existing formal participatory mechanisms, pillars of the representative democracy.”⁵⁵ For many, it represented a change in the EU political environment because for the first time citizens arrived in Brussels, “creating a new political bottom-up ‘actor’ and having the power to influence the making of EU secondary legislation.”⁵⁶

While at the beginning of this experience many scholars enthusiastically studied this new democratic tool, and had many expectations for it, now that the ECI has produced its first results, the comments have become increasingly lukewarm. Between April 1, 2012 and July 20, 2018, the Commission registered more than 70 initiatives and rejected 20 of them. Nevertheless, only a few initiatives reached one million signatures and only three have already received formal feedback from the European Commission. More importantly, however, the outcomes are a long way from the expectations, and very distant from creating a really bottom-up process of legislative initiative.⁵⁷ During the first years of life, the ECI manifested problematic issues at every stage of the procedure.⁵⁸ As a consequence, after a formal EU Parliamentary Resolution, the Commission launched an online consultation with the aim of receiving feedback on possible amendments to the Regulation.⁵⁹

D. Harmonizing “electronic” with traditional forms of democracy

The ECI represents a new generation of democracy instruments with a more direct and transnational value than any other participatory procedure before it and, possibly, a tool that meets the needs of e-participation and e-democracy in the 21^st century.⁶⁰ More importantly than in other fields, the relationship between the Information Communication Technology (ICT) and democracy in the case of the ECI has been considered by EU institutions as a possible way, among others, of solving the many issues related to democratic governance and legitimacy deficits.⁶¹ It certainly represents a novel participatory instrument, granting citizens the opportunity to present legislative initiatives. In this process, the procedural benefits of electronic participation are undisputed. As the report of the European Commission states when evaluating the first three years of the ECI, almost 55% of the statements were collected online. If we compare these results with the expectations, however, this is a failure.⁶² Indeed, IT has been the most severe issue that organizers, mainly the unorganized civil society, have faced.⁶³

While the ECI relies mostly on an e-participatory framework, and increases discussions on topics related to the EU, it also raises a problem of coordination between the role of civil society and the possibility of individuals and European institutions using the web as a way of inducing vast numbers of EU citizens to give their support to initiatives. As the results of the requested and admitted initiatives show, in the majority of cases, participation has been quantitatively a failure, since the proponents have not been able to usher the expected number of EU citizens. For organizations that do not already have a vast number of associates and a strong link with other associations based in other countries, mobilizing a wider public has been quite a fiasco. Several reasons could explain this result, including a lack of electronic preparation on the part of the organizers and the difficulty in using the Commission-run central online collection system for online campaigning.⁶⁴

On balance, it must be concluded that the basic logic of representative democracy has not been altered, and participation currently accounts for only a few issues in the law and policy-making of the EU, and only in an already institutionalized civil society environment.⁶⁵ This means that the ECI does not achieve one of the main purposes the entire procedure aimed to fulfil: To create new networks across borders, strengthen the democratic system of the EU, and raise media awareness of European topics.⁶⁶

E. The difficult configuration of the ECI in the family of direct democracy mechanisms

To understand whether the ECI can bring more democracy and participation into the EU polity, the first comments on the Convention’s Draft Constitution of 2003 mentioned what it is not: It falls outside the category of “petitions,” nor is it a “popular motion” or a “popular initiative.”⁶⁷ As a matter of fact, the ECI appears as a particular agenda initiative with a popular motion addressed to the Commission, because it is the Commission and not the Parliament that holds the right of legislative initiative.⁶⁸

Although the Commission used the so-called method of “reasoning by analogy,” basing the regulation on similar procedures at state level, no existing national model could simply be used as a model for the implementation of the ECI.⁶⁹ It remains a hybrid tool which combines features of direct democracy—as it is the citizens who set law-making procedures in motion and spark an EU-wide debate—and indirect democracy—as the Commission maintains the ultimate power of initiative.⁷⁰

To be sure, it is difficult and insufficient to compare the ECI to similar procedures at the national level,⁷¹ but an analysis that highlights the differences between the ECI and similar institutions from national constitutionalism could help. This would be useful in understanding the failure of the procedure and the disparities between this instrument of participation and the way similar issues are managed at the state level; this is clearly evidence of the above-mentioned inability of the Commission and the Union to develop structures and processes that would adequately replicate even the imperfect practices of state democracies at the EU level.

To understand this problem, it is helpful to explore four features of the ECI: (a) who is the promoter of the initiative; (b) what they promote, and how; (c) who reviews and controls the procedure; (d) who is the beneficiary of the ECI. The first feature concerns the nature of the promoters. As we know, the right to advance an ECI is bestowed only on individual EU citizens. This is different from the right to petition (Article 227 of the TFEU) as this is a right reserved also for legal personnel residing or having their registered office in the territory of a Member State. The one million signatories should be citizens of at least one quarter of all Member States. Proposers are required to collect supporters in other countries separated by language, ethnicity, religion, or culture. For this reason, the threshold of one million signatures to be collected in not less than seven states is higher than any similar instrument of direct democracy.⁷²

The second feature concerns the subject-matter of the initiative and its promotion. It has already been mentioned that the ECI is only a proposition to eventually have a legislative initiative launched by the Commission. In many of the countries with citizens’ initiatives, the right to submit proposals permits the legislative draft to be put directly before the legislatures—i.e. national Parliaments. In the case of the European Union this is not possible, due to the institutional and legal structure on which it is based: As a general rule, initiatives for EU legislation originate from the European Commission (Article 17 TEU). Thus, the ECI gives citizens only the right to request the Commission to make use of its initiative power.⁷³ Therefore, the subject-matter of an ECI is quite different from both referenda and any other popular legislative initiative. Here, citizens have basically only the right to propose the insertion of a topic in the agenda of the Commission and nothing more.⁷⁴

The third aspect concerns the reviews and controls made during the procedure. The Regulation sets forth two distinct controls: The preliminary check at the moment of registration and the control after the verification of signatures (Article 10). Unlike other national institutions, in the case of the ECI the same body (the Commission) wears two different hats: First, it assesses the admissibility of the initiative and, second, it has the duty to carry it out; whereas, in many member states different actors play this role, such as Constitutional or Supreme Court Judges and Parliamentary Committees.⁷⁵ The Commission’s preliminary examination diverges from similar constitutional or legal checks of other popular initiatives. Even if the Commission controls admissibility on the basis of strict regulatory criteria, the way Article 4 is drafted gives considerable discretion to Brussels. Moreover, the Regulation does not present a list of matters excluded from the scope of the ECI or the so-called requisite of the single subject to be chosen, which is quite common in comparative law where it is designed to preserve the coherence and substantive unity of the initiatives.⁷⁶

The fourth feature concerns the beneficiaries of the initiative. As well as analogous instruments from national constitutionalism, such as the Italian People’s Legislative Proposition or the equivalent Austrian and Spanish institutions, to start an ECI there is a requirement for a “Committee” to be formed whose main aim is to defend the cause. Indeed, by means of an ECI, EU citizens seek unity in the midst of rich diversity in furtherance of the collective interest. Both the goal of an initiative and the general scope of reaching closer participation on a problem should be sufficient to encourage petitioners to embrace the duty of launching a widespread collection of statements of interest among EU citizens. Considering the European context and the cost of starting an initiative without certainty of the result, one must wonder whether the ECI could be considered as a mere motion of citizens acting alone. The cumulative requirements of geography and numbers of signatories make the organization of initiatives by citizens alone very difficult—i.e. without the support of an influential organization. This suggests the idea that the real beneficiaries of the ECIs could be large pressure groups already present at EU level.⁷⁷ The experience of the ECI has confirmed this view, since only a small percentage of initiatives reached the minimum number of statements necessary to be submitted to the Commission and—more importantly—in every case the advocates of the initiative were either well recognized NGOs or civil society associations.

The focus on who gains any advantage from the ECI helps us to discover another important aspect of direct democracy mechanisms: The necessity for evaluators to cumulatively verify the strong commitment of advocates and the feasibility of initiatives. For this reason, the practical implementation of the ECI is expected to push sponsors to learn from the experience of popular initiatives. For example, the sponsors could reinforce their initiative while drafting a legislative proposal during the collection of statements of interest. This could be of great help in understanding not only whether and how the motion complies with EU primary law and is confined to its legislative competencies, but also the suitable legal act that could follow the initiative.⁷⁸ Moreover, as happens in many national citizens’ initiatives, the right to formulate legislative proposals has the advantage of being a robust source for future civic debates.

F. The admissibility check: how to combine citizens’ civic advocacy and the discretionary power of the commission

The ECI has stimulated quite a long list of initiatives in five years. They range from very specialized issues of concern to public interest groups to wide-ranging populist or even anti-populism campaigns.⁷⁹ A quite interesting distinction that echoes the differences made in this special issue by Zoran Oklopcic.⁸⁰

An example of the first group are initiatives like “Minority SafePack – one million signatures for diversity in Europe” or “Stop TTIP” or “Stop Plastic in the Sea.” On the contrary, in the second group there is those initiatives aimed at expressing what “the people want” or being “against the political elite,”⁸¹ such as “Let us reduce the wage and economic differences that tear the EU apart!”; “Suspension of the EU Climate and Energy Package”; “Unconditional Basic Income”; “A new EU legal norm, self-abolition of the European Parliament and its structures, must be immediately adopted”; “Stop starvation for 8% of the European population”; and “Stop TTIP and CETA.”⁸² A good example of the third group is “Wake up Europe! Agir pour préserver le projet démocratique européen,” which was launched in November 2015 in light of the increasingly authoritarian policies of some European governments to help civil society contrast “populist discourses and policies that shrink the democratic space.”⁸³

The debate over the feasibility of ECIs has been focused on issues related to the initial check of the Commission regarding the admissibility of the proposal.⁸⁴ The regulation spells out the limits to the material scope of an initiative, laying down which conditions are applicable for registration. First, it provides that the Commission can refuse to register an initiative that falls “manifestly outside the framework of the Commission’s powers to submit a proposal for a legal act of the European Union. …”⁸⁵ Determining whether the subject of a campaign falls outside the Commission’s powers could be very difficult for people without professional or specialized knowledge in European law.⁸⁶ Second, the proposed initiative should not be “manifestly abusive, frivolous or vexatious.” Evidently this requisite refers to a scenario where ECIs are launched either to achieve an aim that is different from the adoption of a legislative act or to merely raise visibility in order to mount opposition against some European policy.⁸⁷ Third, the ECI should not be manifestly contrary to the values of the EU as set out in Article 2 TEU; for instance, a proposed initiative should not violate the Charter of Fundamental Rights.

So far, the Commission has accepted forty-eight initiatives.⁸⁸ Another fifteen initiatives have been declared “obsolete” after being withdrawn by the organizers; at least 22 requests have had registration refused by the Commission.⁸⁹ The power of the Commission to reject initiatives under overly strict legal admissibility criteria has been fiercely criticized. This broad and “elitist’” power is considered to have limited the power of the ECI to promote participation through public debate and to directly influence the EU agenda.

By looking at the letters explaining rejections we can understand why this power is wrongly used, and how they frequently can lead to legal claims. The Commission, in fact, essentially follows the same rationale in every letter.⁹⁰ First, it points out the absence of a proper legal basis and, second, the practical impossibility of conferring to itself the power to propose the legal act requested.⁹¹ The only dissimilarity lies in the gravity of the error made by the Committees at the moment of choosing the legal basis, which varies from the selection of the improper article of the treaty to its wrongful interpretation. In all these letters the Commission implies it lacks the power of initiative because of the “absence” of a valid legal basis in the proposal.

Changes in the usual procedure can be found in some letters, when the Commission illustrates why the registration has been refused, even though the Union institutions are bound in their acts to respect the values or the principles that an initiative aims to perform. One of most interesting examples of this phenomenon is the initiative for the abolition of Spanish Corridas (bullfighting).⁹² Here, the reasoning of the Commission is all but laconic. The Commission’s letter explained why—even if the Commission had promoted the welfare of animals in many circumstances and another ECI in the area of animal welfare had already been accepted (concerning dairy cows)—the initiative about the abolition of Corridas fell short of a valid legal basis in the treaties.⁹³ Interestingly, the Commission also mentioned the ruling of the ECJ in Jippes, in which the Court recognized that “ensuring the welfare of animals does not form part of the objectives of the Treaty, as defined in Article 2 EC, and that no such requirement is mentioned in Article 33 EC, which sets out the objectives of the common agricultural policy.”⁹⁴

Even the rejection of the initiative Minority SafePack—one million signatures for diversity in Europe, an initiative for proposing laws that enable the promotion of minority rights, language rights, and the protection of their cultures,⁹⁵ relies on different reasoning. In its letter, the Commission declared that some of the acts requested in the Annex of the initiative “might individually fall within the framework of the Commission’s power to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties.”⁹⁶ As will be explained later, in this case the Court has ruled on this specific issue and has imposed the admittance of the initiative on the Commission.

Indeed, the decision not to register an initiative is a matter subject to judicial review. There are two ways for the organizers to do this: First, they can start an action of annulment under Article 263 TFEU; second, they can file a complaint with the European Ombudsman under the conditions specified in Article 228 of the TFEU.

So far (February, 14 2019), the General Court has reviewed seven rejections.⁹⁷ In two cases the Court annulled the Commission’s decision; these cases have, therefore, now been registered on the Commission’s website as open to signatories.⁹⁸ In another case, after the judgment of the Court to dismiss the action, the applicant lodged an appeal before the Court of the European Union. The Court of the European Union delivered its decision on September 12, 2017, refusing to set aside the judgement of the General Court.⁹⁹ The decisions of the European Courts cast light on the Commission’s legal obligations during the registration stage, but perhaps also—as has been pointed out—on the perennial question of the division of competencies between the EU and Member States.¹⁰⁰ In the two cases where it was decided to dismiss the action taken by the Committees, the General Court confirmed that the interpretation of Article 4, paragraph 2, (b) of the Regulation must be in accordance with the “principle of conferral” (Article 13, paragraph 2, of the TEU),¹⁰¹ and that Article 352 of the TFEU, which provides the so-called “flexibility-clause” of EU competences, can be used in the context of an ECI, insofar as it did not widen improperly the scope of EU powers or amend the Treaties.¹⁰² In the last two cases, which both annulled the Commission’s decision, the General Court had the opportunity to provide guidance for understanding the ECI procedure. In one case, it struck down the decision to refuse the registration of the ECI on the grounds of “insufficient reasoning.”¹⁰³ In the other, the General Court annulled the rejection of the Commission.¹⁰⁴ In this decision the Court adopted a very interesting definition of a “legal act” of the European Union and linked it with the principle of democracy.¹⁰⁵ By rejecting the Commission’s argument that it is impossible to register an initiative that aims to disrupt the law-making process, the Court affirmed: “[T]here is nothing in Article 11(4) TEU or Article 2(1) ECI Regulation indicating that citizens cannot act through an ECI in order to prevent the adoption of a legal act.”¹⁰⁶

Although seen as the possibility to admit an ECI, these decisions do not seize the moment to give a clear definition of the Commission’s discretion as a democratically accountable administrative power.¹⁰⁷ In this sense, the General Court and the Court of Justice have lost the occasion to “push the integration further”¹⁰⁸ and to provide reasoning that could be used in reforming participatory democracy in the EU.

G. A weak and unconvincing procedure

The follow-up phase is the stage that succeeds the twelve-month signature collection phase; it includes the Commission’s decision on how to manage the requests made by the one million signatories. In this phase the Commission holds a broader discretionary power and the possibility of either hearing or not hearing the voice of the European people.¹⁰⁹ Indeed, according to Article 10, paragraph 1 (c), of the Regulation, the only duty of the Commission is to inform the public about “the action it intends to take, if any, and its reasons for taking or not taking that action.”

The six years were a source of frustration both among commentators and civil society actors. Only four initiatives reached the one million signature threshold. The decisions of the Commission on these initiatives have been very vague and have not produced clear-cut decisions.¹¹⁰ The legislative follow-up to the ECIs has been non-existent, so much so that some have argued that the ECI has the nature of an illusory initiative.¹¹¹

The ECI Right2Water ¹¹² is the first ECI to have produced some political—but not legal—consequences. Indeed, despite the great support for this initiative—more than 1.5 million signatures—the Commission decided not to take any legislative action following the campaign. In the same communication used to illustrate the reason for not taking any action after the initiative met the requirements, however, the Commission stated that it would “prepare a review of the Water Framework Directive and propose any necessary amendments to it” and would “launch an EU-wide public consultation on the Drinking Water Directive, notably in view of improving access to quality water in the EU.”¹¹³ As we understand it, the initiative has not produced any legal results, yet the people’s contribution, which has been more on the public-discursive side of Union debates on water, is becoming a “policy-creating instrument that will improve citizens’ influence in the EU political context.”¹¹⁴

In the other two cases in which the Commission had to decide which action to take, the declaration explaining why no legislative initiative would follow the ECI was greatly criticized. Hence, the organizers of the ECI One of Us decided to bring a formal action against the European Commission before the Court of Justice,¹¹⁵ while the organizers of Stop Vivisection lodged a complaint with the European Ombudsman, which concluded on April 18, 2017 that the European Commission had “complied with its duty to explain, in a clear, comprehensible and detailed manner, its position and political choices regarding the objectives of the ECI” proposed.¹¹⁶ The last ECI to reach one million signatures is Ban glyphosate, which was submitted to the Commission on October 6, 2017.¹¹⁷ This case shares some of the characteristics of the ECI Right2Water, since the Commission has reviewed its decisions after an EU Parliamentary resolution, which had been urged following a “farmers’ rebellion” and some other initiatives taken to revise the legislation.¹¹⁸ The Commission, indeed, has adopted a Communication on December 12, 2017 setting out a mix of actions mainly intended to enhance transparency and sustainability in the use of pesticides.¹¹⁹

Although the non-binding character of the ECI is in line with the construction of this instrument, and recalls a basic principle of the EU institutional and constitutional (incomplete) system—particularly the idea that the Commission cannot take instruction from other entities—the experience of these five years tells the story of a very weak and unconvincing participatory instrument.¹²⁰ The ECI was supposed to become “a powerful agenda-setting tool in the hands of citizens,” but the reality is very different from that aspiration.¹²¹

Part of the literature tries to explain this failure, stressing the multi-polar nature of the ECI. By using this narrative, these authors seek to soften the issues stating that “like other democratic innovations, the ECI should not be considered a unitary tool aimed at achieving a single end.”¹²² Even the European Ombudsman stressed that “the Commission coming forward with a legislative proposal should not be the only measure of success.”¹²³ Although this justification is gaining a lot of followers, it is based on a poor argument, since the ECI “promises” European citizens not the mere possibility of rebelling, but the right to participate in the legislative process and prevent outrage.¹²⁴ As the General Court affirms in Costantini: “[T]he ECI mechanism has as its subject matter or objective not initiating a mere dialogue between the citizens and the institutions but requesting the Commission, within the framework of its powers, to submit a proposal for an act.”¹²⁵ Therefore, even if the Commission is the “playmaker” of legislative initiative, the importance of the ECI cannot be undermined by treating supporters of the first trans-European form of democratic participation at the same level as mere interest groups whose aim is to lobby. The scope of the ECI should be to overcome this stage and become something more solid than a mere proposal to improve the policy design or the mere agenda of the Commission.¹²⁶

H. Concluding remarks

This Article has attempted to look at the health of European democracy by examining the development of the European Citizens’ Initiative. The ECI was introduced in Lisbon as an instrument to tackle both the disenchantment towards EU institutions and the feeling of disengagement from the political processes. The story of ECI shows two things: On one side, it sketches all the difficulties to correct EU integration in a way that is more open to welcoming the actual will of people; on the other side, it reveals the stringent necessity of creating a European public sphere before, and over, an economic union.

The analysis of the ECI has raised two important points. First, it has emerged that e-participation has too much of a lateral role in the overall framework of deliberative procedures, which is still dominated by the technocratic power of the Commission. This is not only a technical—i.e. informatics—problem, as the EU Commission assessed in 2015, but one of the most problematic issues harming the entire ECI procedure.¹²⁷ Moreover, the emergence of a “cyber-public” sphere as an important part of European e-participation is called into question when it influences the way citizens and civil society organizations can participate in the EU decision-making process by using online tools.¹²⁸ This is particularly true in the case of the ECI since citizens and civil society are seen as subjects that tend to conquer “arenas,” where jealous political parties and institutions remain dominant.¹²⁹ Second, although several initiatives obtained one million signatures, the EU Commission took further explicit informal steps with regard to two of these initiatives, namely the Right2Water and Ban Glyphosate. Even if this is evidence of the possibility of using an ECI as a “dialogue-enhancing tool,” the opportunity of creating a second-best solution must be put into specific and individual practices. The ECI could be used as a demonstration of EU institutions’ intention to implement more open channels for public debate or even resentment.¹³⁰

Therefore, insofar as the ECI competes with the Commission’s right of legislative initiative, the possibility for people to propose new legislation might be considered as a way of limiting the Commission’s prerogatives.¹³¹ As one would expect the Commission’s approach has clearly blocked the amount and variety of democratic deliberation that the ECI can generate. This is particularly dangerous at a time when, after the results of the referendum in the UK on Brexit and the upcoming general election of the European Parliament, the need to reactivate the connection between the EU and citizens is more urgent than in the past and new forms of people participation should go along with old forms of representative democracy.¹³²

Based on this assumption, it is possible to draw two suggestions. The first regards the revision of the Regulation on the ECI—starting from the idea of distancing the ECI from the Commission and giving more powers both to the Parliament¹³³—in the political phase that succeeds the 12 months after the signature, and to the European Court of Justice during the registration of initiatives.¹³⁴ This is not only necessary to move the ECI closer to the family of “popular initiatives,” but also for enhancing the democracy of the entire procedure and letting it evolve in the direction that the proposers of this mechanism foresaw at the very beginning during work on the “European Constitution.”¹³⁵ Obviously, this should be coupled with a comprehensive simplification and reform of the ECI procedure,¹³⁶ which might require not only legislative amendments, but also informatics improvements.¹³⁷ It is a difficult task to undertake, but there is democratic participation at stake, and we do not have time to lag behind.¹³⁸

Naturally, this cuts across the second conclusion, namely the problem of the idea of democracy underlying European integration. The troublesome introduction of the ECI offers some insights about how to manage the new reality of the European Union after the crisis of the Eurozone and the growth of populist parties and movements. Namely, it helps us to understand that the early vision of the Union as one of the main poles of a multipolar system has changed, yet has not been completely lost,¹³⁹ just as the process of “democratization/constitutionalization” that Maastricht set in motion has not come to fruition, at least in the manner originally foreseen.¹⁴⁰

Therefore, if the EU is to get its house in order, politicians and bureaucrats need to accept the beginning of a new phase in the democratization/constitutionalization of Europe. This must be marked not by the ambitions of Maastricht, but a more reasonable idea of the work necessary to secure popular support for the European project, with the specific task of creating a pluralistic, civic space of dialogue among people and representatives,¹⁴¹ as well as new instruments for channeling the anger towards Europe into democratic forms of civic dialogue within European institutions. Without a common public sphere and a new foedus—namely a renovated alliance among Europeans and a valuable road for a new unitary sovereign power—the EU will always lack legitimacy in the eyes of people. But trust in the EU’s values does not simply materialize on demand. A new idea of Europe needs an effort of leadership and vision as well as “the enhancement of democratic processes of governance at the European not less than at the national scale.”¹⁴² It is within this public and political space that the populist backlash and Euroscepticism could be flushed out and Monnet’s ambition to create Europeans and European-ness could find full expression eventually.