What are we to make of the citizens' initiative?

Common Market Law Review

Volumn 48, Issue 6, 2011, Pages 1807-1848

  Dougan, Michael ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

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EID: 84859047069     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.54648/cola2011071     Document Type: Article

References (163)

1. O.J. 2011, L 65/1.
2. Which have not always proved a particularly good advertisement for direct democracy: see further, e.g. Taggart, "Questions of Europe: The domestic politics of the 2005 French and Dutch referendums and their challenge for the study of European integration", 44 JCMS (annual review) (2006), 7.
3. Arnull, "Ireland and the LisbonTreaty: All's well that ends well?" in Arnull, Barnard, Dougan and Spaventa (Eds.), A Constitutional Order of States: Essays in EU Law in Honour of Alan Dashwood (Hart Publishing, 2011).
4. Consider also, e.g. Cheneval, "EU citizenship, direct democracy and treaty ratification", 13 ELJ (2007), 647.
5. Shu, "Referendums and the political constitutionalisation of the EU", 14 ELJ (2008), 423
6. Now Arts. 24 and 227 TFEU.
7. In accordance with Art. 225 TFEU. Note that the Commission has increasingly encouraged various forms of direct citizenship participation in policy-making: for a critical survey, see Fischer-Hotzel, "Democratic participation? The involvement of citizens in policy-making at the European Commission", 6 Journal of Contemporary European Research (2010), 335.
8. Note that similar proposals had been mooted (though without success) on previous occasions, e.g. during the negotiations which led to the Treaty of Amsterdam: see further Constantinesco, Gautier and Michel (Eds.), Le Traité établissant une Constitution pour l'Europe: Analyses & Commentaires (Presses Universitaires de Strasbourg, 2005), p. 370.
9. See CONV 724/1/03 REV 1
10. See CONV 798/03
11. See CONV 811/03 and CONV 797/1/03 REV 1
12. See CONV 814/03
13. O.J. 2003, C 169.
14. One thinks here of the relationship between delegated and implementing acts under Arts. 290-291TFEU, or of the revised rules on standing for natural and legal persons as regards the action for annulment under Art. 263 TFEU: see Dashwood, Dougan, Rodger, Spaventa and Wyatt, Wyatt and Dashwood's EU Law, 6th ed. (Hart Publishing, 2011), chs. 4 and 6 (respectively).
15. Consider, in particular, the reference only to Commission "proposals" and the position as regards calls for Treaty amendments (both discussed in section 6.1).
16. O.J. 2004, C 310.
17. O.J. 2007, C 306.
18. For consolidated versions, see O.J. 2010, C 83.
19. On which, see further, e.g. Crum, "Tailoring representative democracy to the European Union: Does the European constitution reduce the democratic deficit?", 11 ELJ (2005), 452.
20. COM (2009) 622 final. The European Parliament had called upon the Commission to submit proposals for implementing the CI earlier that year: see Resolution 2008/2169(INI) of 7 May 2009, O.J. 2010, C 212 E/14.
21. COM (2010) 119 final
22. See, e.g. the reactions contained in The European Citizens' Initiative Handbook: Your Guide to theWorld's First Transnational Direct Democratic Tool (Green European Foundation, 2010).
23. Consider, in particular, the minimum threshold of Member States from which support must come (discussed in section 5.2); and the degree of scrutiny over proposed CIs by the Commission (discussed in section 6.2).
24. See further: section 5.1 infra.
25. See further: section 4 infra
26. See further: section 5.3 infra.
27. Consider, in particular, a citizen's required age in order to support a proposed CI (discussed in section 5.1 infra) and the method of linking signatures to Member States (discussed in section 5.3 infra).
28. See Commission Press Release, Commission Welcomes Agreement on European Citizens' Initiative (IP/10/1720 of 15 Dec. 2010).
29. O.J. 2011, L 65/1.
30. See Art. 23 of Regulation 211/2011. The procedure is described in section 4 infra.
31. Other Member States (e.g. France and Sweden) make constitutional provision for some form of popular initiative only at the regional / municipal level; still others have experimented with various national and / or local popular initiatives by subordinate legislative means (e.g. in the Netherlands and in Germany). In 2011, the UK launched an online petition system whereby any proposal securing 100,000 endorsements is eligible for formal debate in Parliament. Note that various jurisdictions outside the EU (e.g. within Switzerland, the USA and New Zealand) also have extensive experience of direct democracy.
32. Cronin, Direct Democracy: The Politics of Initiative, Referendum and Recall (Harvard University Press, 1989)
33. Kobach, The Referendum: Direct Democracy in Switzerland (Dartmouth, 1993)
34. Consider, e.g.Vanzetta, Non-Binding Citizen and Regional Initiatives in Italy from 1948 to 2005 (Democracy International, 2006).
35. Rytel, The Popular Initiative in Poland (Democracy International, 2006)
36. One notable exception is Austria, whose more extensive experience was discussed by Mads Qvortrup in his paper, "The legislative initiative:Acomparative overviewof the European experience", presented at the conference The EU Citizens' Initiative: Normative, Legal and Policy Perspectives (University of Liverpool, 6 May 2011)
37. On the benefits of direct democracy, see further, e.g. Verhulst and Nijeboer, Direct Democracy: Facts and Arguments about the Introduction of Initiative and Referendum (Democracy International, 2007).
38. I.e. the CI can be seen as a formof ex ante non-majoritarian input into the policy process (complementing judicial review as an ex post non-majoritarian control over policy outcomes).
39. E.g. Budge, "Direct democracy" in Rhodes, Binder and Rockman (Eds.), The Oxford Handbook of Political Institutions (OUP, 2006).
40. E.g. Zimmerman, Participatory Democracy: Populism Revived (Praeger, 1986), ch. 4.
41. Qvortrup, A Comparative Study of Referendums (Manchester University Press, 2005), ch. 2.
42. E.g. Lenaerts and Gerard, "The structure of the Union according to the Constitution for Europe: The emperor is getting dressed", 29 EL Rev. (2004), 289.
43. More recently, e.g. Van Raepenbusch, "La réforme institutionelle du Traité de Lisbonne: L'émergence juridique de l'Union européenne", (2007) CDE, 573.
44. E.g. Dougan, "The convention's draft constitutional treaty: Bringing Europe closer to its lawyers?", 28 EL Rev. (2003), 763.
45. E.g. Peters, "European democracy after the 2003 Convention", 41CMLRev. (2004), 37.
46. More recently, e.g. Craig, "The Treaty of Lisbon: Process, architecture and substance", 33 EL Rev. (2008), 137.
47. See further e.g. Currie, "The transformation of Union citizenship" in Dougan and Currie (Eds.), 50 Years of the European Treaties: Looking Back and Thinking Forward (Hart Publishing, 2009).
48. Cuesta Lopez, "The Lisbon Treaty's provisions on democratic principles:A legal framework for participatory democracy", 16 EPL (2010), 123
49. In similar vein, note also Hierlemann and Wohlfarth, A Revolution in Disguise: The European Citizens' Initiative (Spotlight Europe, 2010): if MEPs come to play an active role in organizing CIs of their own, the new system could in time act as a stimulus for the rise of stronger European party groups
50. However, on the many challenges of "operationalizing" cross-border political solidarity, see further, e.g. Bredt, "The European social contract and the European public sphere", 12 ELJ (2006), 61.
51. Magnette, "How can one be European? Reflections on the pillars of European civic identity", 13 ELJ (2007), 664
52. Shaw, TheTransformation of Union Citizenship: Electoral Rights and the Restructuring of Political Space (CUP, 2007)
53. Cf. Smismans, "The constitutional labelling of the 'the democratic life of the EU': Representative and participatory democracy" in Follesdal and Dobson (Eds.), Political Theory and the European Constitution (Routledge, 2004).
54. Note that the Regulation also contains provisions dealing with issues such as the protection of personal data (Art. 12); liability of and penalties against the organizers of a CI (Arts. 13 and 14); amendment by the Commission of the Annexes (Arts. 16-19); and periodic review of the application of the Regulation (Art. 22).
55. Art. 2(3) andArt. 3(1)-(2). It is specifically provided that organizers who are also MEPs shall not count for the purposes of reaching the minimum number of persons required to form a valid citizens' committee.
56. Art. 4(1).
57. Annex II. Information about sources of support and funding must be kept regularly updated: Art. 4(1).
58. Art. 4(1).
59. Art. 4(2).
60. Art. 4(4). Note that the organizers may subsequently withdraw their proposed CI at any time before submitting the necessary statements of support: Art. 4(5).
61. Art. 4(1). Note that the Union legislature did not heed calls for the Union itself to provide assistance with the task of translation: see, e.g. Committee of the Regions, Opinion on the"European Citizens' Initiative",O.J. 2010, C 267/57; Economic and Social Committee,O.J. 2010, C 354/59.
62. Art. 4(3).
63. See sections 5.1 and 5.2.
64. Annex III
65. Art. 5(1).
66. Art. 5(2).
67. See Art. 6.
68. Art. 5(5). Note that therewas support within the European Parliament for a significantly longer timeframe within which to collect statements of support: see, e.g. the opinion of the Committee on civil liberties, justice and home affairs for the Committee on constitutional affairs of 26 Oct. 2010 (2010/0074(COD)).
69. Art. 8(1). The organizers much use the standard form contained in Annex V.
70. See section 5.3 infra.
71. Art. 8(2) and Annex VI.
72. Art. 9 and Annex VII.
73. Art. 10(1)(a) and (b).
74. Art. 11. The Commission must be represented, again at an appropriate level.
75. Art. 10(1)(c) and 10(2).
76. E.g. Art. 41(2) Austrian Federal Constitutional Law; Arts. 28C and 28D Hungarian Constitution; Arts. 71(2) and 75 Italian Constitution; Art. 78 Latvian Constitution; Art. 68(2) Lithuanian Constitution; Art. 118(2) Polish Constitution; Art. 73(1) Romanian Constitution; Arts. 88 and 90 Slovenian Constitution.
77. The same definition applies to those natural persons who form a "citizens' committee" with a view to organizing a proposed CI: see Art. 3(1).
78. Stalford and Schuurman, "Are we there yet? The impact of the Lisbon Treaty on the EU children's rights agenda", 19 International Journal of Children's Rights (Special Issue on The European Union and Children's Rights) (2011), forthcoming
79. There is also a striking contrast between the degree to which children benefit passively (sometimes even instrumentally) from their status as Union citizens in the field of free movement law (consider, e.g. Case C-413/99, Baumbast, [2002] ECR I-7091; Case C-200/02, Zhu and Chen, [2004] ECR I-9925; Case C-34/09, Ruiz Zambrano, judgment of 8 March 2011, nyr; and their apparent exclusion from active participation in the exercise of the political rights (even the ability to express support for a proposed CI) associated with Union citizenship.
80. Though we will shortly return to the thorny issue of how Regulation 211/2011 itself (mis-)handles situations involving cross-border migration and residency across the Union: see section 5.3 infra.
81. I.e. in accordance with Directive 2003/109 concerning the status of third-country nationals who are long term residents, O.J. 2004, L 16/44.
82. Contrast Art. 46(4) of the draft CT with Art. I-47(4) of the final CT.
83. Note that lawfully residentTCNs still have the right to petition the European Parliament in accordance with Art. 227 TFEU.
84. Case C-145/04, Spain v. United Kingdom, [2006] ECR I-7917. On the sorts of limits imposed by Union law, consider Case C-300/04, Eman and Sevinger, [2006] ECR I-8055.
85. See Dougan, "The Treaty of Lisbon 2007: Winning minds, not hearts", 45 CML Rev. (2008), 634-635.
86. See Art. 7 of Protocol No 2 on the application of the principles of subsidiarity and proportionality.
87. See Art. 20 TEU.
88. In which regard, contrast the rules governing the CI with the requirement of balanced representation, e.g. under the provisions relating to the composition of a reduced Commission (Art. 17 TEU) or concerning the team presidencies for the Council (Decision 2009/881, O.J. 2009, L 315/50).
89. Cf. Art. 14(2) TEU.
90. E.g. a minimum proportion such as 5% would have required at least 50,000 signatures from countries such as Malta, Luxembourg or Estonia.
91. Consider, in particular, the FCC's rulings on the MaastrichtTreaty ([1994] 1 CMLR 57) and the Lisbon Treaty (BVerfG judgment of 30 June 2009)
92. See further, e.g. Herdegen, "Maastricht and the German Constitutional Curt: Constitutional restraints for an 'ever closer Union'", 31 CML Rev. (1994), 235.
93. Thym, "In the name of sovereign statehood: A critical introduction to the Lisbon judgment of the German Constitutional Court", 46CMLRev. (2009), 1795.
94. One need only consider those legislative chambers which offer representation to sub-national regions other than on the strict basis of their relative population sizes
95. See Art. 3 of Protocol No 36 on transitional provisions.
96. See Art. 14(2) TEU.
97. See especially Arts. 4(1) and 5(2) TEU.
98. Cf. Reh, "The Lisbon Treaty: De-constitutionalizing the European Union?", 47 JCMS (2009), 625.
99. Aproblem especially for countries such as the UK, Ireland or the Netherlands; see infra
100. See Art. 5(3) of Regulation 211/2011.
101. Consider, e.g. Case C-18/95, Terhoeve, [1999] ECR I-345; Case C-224/98, D'Hoop, [2002] ECR I-6191; Case C-192/05, Tas-Hagen, [2006] ECR I-10451; Case C-287/05, Hendrix, [2007] ECR I-6909; Cases C-11-12/06, Morgan and Bucher, [2007] ECR I-9161.
102. Consider, on judicial review of Union acts, e.g. Case 41/84, Pinna, [1986] ECR 1; Case C-262/88, Barber, [1990] ECR I-1889; Case T-117/08, Italy v. EESC, judgment of 31 March 2011, nyr.
103. See Arts. 16-19.
104. To go further, e.g. by obliging "Form B" countries also to recognize the identity cards / passports issued by other Member States, would probably require an amendment to Art. 8 of Regulation 211/2011 itself.
105. Brenner, New State Spaces: Urban Governance and the Rescaling of Statehood (OUP, 2004)
106. Indeed, consider Berezin and Schain (Eds.), Europe Without Borders: Remapping Territory, Citizenship and Identity in a Transnational Age (John Hopkins University Press, 2003).
107. Ferrera, The Boundaries ofWelfare: European Integration and the New Spatial Politics of Social Protection (OUP, 2005)
108. For related discussion, see further e.g. Faist, "Social citizenship in the European Union: Nested membership", 39 JCMS (2001), 37.
109. Golynker, Ubitquitous Citizens of Europe: The Pardigm of Partial Migration (Intersentia, 2006)
110. Kostakopoulou, "European Union citizenship: Writing the future", 13 ELJ (2007), 623
111. Dougan, "The spatial restructuring of national welfare States within the European Union: The contribution of Union citizenship and the relevance of the Treaty of Lisbon" in Neergaard, Nielsen and Roseberry (Eds.), Integrating Welfare Functions into EU Law: From Rome to Lisbon (DJØF Publishing, 2009).
112. We refer here to cases such as Case C148/02, GarciaAvello, [2003] ECR I11613; Case C-353/06, Grunkin and Paul, [2008] ECR I-7639; Case C208/09, Sayn-Wittgenstein, judgment of 22 Dec. 2010, nyr; Case C-391/09, Runevič-Vardyn, judgment of 12 May 2011, nyr.
113. E.g. Somek, "Solidarity decomposed: Being and time in European citizenship", 32 EL Rev. (2007), 787.
114. O'Brien, "Real links, abstract rights and false alarms: the relationship between the ECJ's 'real link' case law and national solidarity", 33 EL Rev. (2008), 643.
115. Spaventa, "Seeing the wood despite the trees? On the scope of Union citizenship and its constitutional effects", 45 CML Rev. (2008), 13.
116. Dougan, "Social security and the internal market:The contribution of Union citizenship and the relevance of the LisbonTreaty" in Becker and Schwarze (Eds.), Gemeinwohlverantwortung im Binnenmarkt (Mohr Siebeck, 2010).
117. See further, e.g. Golynker, annotation of Förster, 46 CML Rev. (2009), 2021.
118. O'Leary, "Equal treatment and EU citizens: A new chapter on cross-border educational mobility and access to student financial assistance", 34 EL Rev. (2009), 612.
119. De la Rosa, "La citoyenneté Européenne à la mesure des intérêts nationaux: A propos de l'arrêt Förster", (2009) CDE, 549
120. Marzo, "La définition d'une nouvelle méthode de jugement attachée à la citoyenneté Européenne: Réflexions autour de l'arrêt Förster", 45 RTDE (2009), 439
121. Consider, in a similar vein albeit a rather different context, the ruling in McCarthy, cited supra note 96: the ECJ denied recognition under EU free movement law of the choice of many among the Northern Irish population (usually Catholics / nationalists) to adopt citizenship of the Irish Republic (despite their being UK nationals); the individual's political and cultural self-identification as the citizen of another Member State, expressed in the formal adoption of the latter's nationality, seems to matter less to the Court than the objective fact of cross-border movement (even though the latter would, for many such individuals, be an altogether artificial or even unattainable legal construct)
122. Consider also, e.g. Nic Shuibhne, "The resilience of EU market citizenship", 47 CML Rev. (2010), 1597.
123. Shaw, "Citizenship: Contrasting dynamics at the interface of integration and constitutionalism" in Craig and De Búrca (Eds.), The Evolution of EU Law, 2nd ed. (OUP, 2011).
124. Contrast with the view of Lukšič and Bahor, "Participatory democracy within the EU: Solution for democratic gap?", 3 Journal of Comparative Politics (2010), 85
125. Though it is interesting to note that MEPs cannot count towards the minimum thresholds for formation of a valid citizens' committee: see Art. 3(2) of Regulation 211/2011.
126. See Arts. 4 and 9.
127. Cf. European Data Protection Supervisor, Opinion on the proposal for a Regulation on the citizens' initiative, O.J. 2010, C 323/1.
128. See Art. 12.
129. Cf. the well-known "campaign" (which nevertheless predated the entry into force of the CI system) for the European Parliament to be based permanently and exclusively in Brussels: see further, e.g. Dinan, "Governance and institutional developments: Coping without the Constitutional Treaty", 45 JCMS (annual review) (2007), 67.
130. I.e. the convening of a Convention and / or of an IGC under Art. 48(3)-(4)TEU (in the case of the ordinary revision procedure); or a European Council decision to amend Part Three TFEU under Art. 48(6) TEU (in the case of that simplified revision procedure).
131. Cf. Art. 28C Hungarian Constitution; Art. 75 Italian Constitution; Art. 73(2) Romanian Constitution; Art. 93(3) Slovakian Constitution; Art. 87(3) Spanish Constitution.
132. Cf. Arts. 4-5 TEU and Arts. 2-6 TFEU.
133. See especially Arts. 27(1) and 30(1) TEU.
134. See section 6.3 infra.
135. See Art. 4(3) of Regulation 211/2011.
136. Overlooking any competence problems which might arise when it comes to the interaction between the Union's attributed powers (on the one hand) and such contested social and cultural issues (on the other hand)
137. In similar vein, consider also: Editorial Comments, "European elections - Is the European Parliament important today?", 46 CML Rev. (2009), 767.
138. E.g. Art. 28C Hungarian Constitution; Art. 75 Italian Constitution; Art. 95 Slovakian Constitution; Art. 90 Slovenian Constitution.
139. E.g. Art. 71(2) Italian Constitution.
140. E.g. Art. 28D Hungarian Constitution; Art. 68(2) Lithuanian Constitution.
141. E.g. Art. 78 Latvian Constitution.
142. See Art. 17(2) TEU. Also Art. 289 TFEU.
143. In particular: Arts. 17(1) and (3) TEU. Also Art. 245 TFEU.
144. See Arts. 241 and 225 TFEU (respectively).
145. See Arts. 10 and 11.
146. Under Art. 17(2) TEU.
147. Cf. Cuesta Lopez, "The Lisbon Treaty's provisions on democratic principles: A legal framework for participatory democracy", 16 EPL (2010), 123.
148. In accordance with Arts. 225 and 241 TFEU (respectively).
149. Cf. Jacqué, "Le traité de Lisbonne: Une vue cavalière", 44 RTDE (2008), 439.
150. Cf. Piris, The Constitution for Europe: A Legal Analysis (CUP, 2006), p. 119.
151. Note also that Recital 9 to the Preamble of Regulation 211/2011 explicitly recognizes the role of "entities" in promoting CIs (even if such entities are not entitled per se to form part of the necessary organizing committee)
152. See further, e.g. Dougan, "The unfinished business of enhanced cooperation: Some institutional questions and their constitutional implications" in Ott and Vos (Eds.), 50 Years of European Integration: Foundations and Perspectives (TMC Asser Press, 2009).
153. For more detailed discussion, e.g. Blondel, Sinnott and Svensson (Eds.), People and Parliament in the European Union: Participation, Democracy and Legitimacy (Clarendon Press, 1998).
154. Schmitt and Thomassen (Eds.), Political Representation and Legitimacy in the European Union (OUP, 1999).
155. Steunenberg and Thomassen (Eds.), The European Parliament: Moving Toward Democracy in the EU (Rowan & Littlefield Publishers, 2002).
156. Scully and Farrell, "MEPs as representatives: Individual and institutional roles", 41 JCMS (2003), 269
157. Cf. Hix, What's Wrong with the European Union and How to Fix It (Polity Press, 2008).
158. Consider, albeit from rather different perspectives, e.g. Scharpf, Governing in Europe: Effective and Democratic? (OUP, 1998).
159. Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth (OUP, 2005)
160. E.g. Case 138/79, Roquette Frères v. Council, [1980] ECR 3333; Case C-70/88, Parliament v. Council, (Chernobyl) [1990] ECR I-2041.
161. Note that several authors have stressed the importance of Art. 11 TEU, viewed as a whole, in encouraging a (politically and legally) more robust approach to participation democracy within the EU: see, e.g. Craig, The Lisbon Treaty: Law, Politics and Treaty Reform (OUP, 2010).
162. Mendes, Participation in EU Rule-Making: A Rights-Based Approach (OUP, 2011)
163. See also in this Review, Mendes, "Participation and the role of law after Lisbon:A legal view on Article 11 TEU"