Between discretion and control: Reflections on the institutional position of the Commission within the European citizens' initiative process

• Author: Nikos Vogiatzis
• Published date: 01 July 2017
• Date: 01 July 2017
• DOI: http://doi.org/10.1111/eulj.12229

ORIGINAL MANUSCRIPT

Between discretion and control: Reflections on the

institutional position of the Commission within the

European citizens'initiative process

Nikos Vogiatzis*

Abstract

This article considers the institutional position of the Commission within the European citizens' initiative (ECI)

process, with particular emphasis on its decision regarding the admissibility/registration of a proposed ECI, and

its final decision on the outcome of an ECI which has met the necessary levels of support. The purpose of this

contribution is to juxtapose the case‐law of the Court on the Commission's discretion and the relevant provisions

of the Treaties with the evolution of European integration and, more specifically, the evolution of the

Commission's role therein. Viewed under this prism, the Commission's powers at the registration stage (which

in any event clearly fall under the scope of judicial review) are compatible with the constitutionalisation of the

Union, whereas the Commission's width of discretion at the follow‐up stage, while compatible with the

Commission's prerogatives, cannot easily be reconciled, nonetheless, with the Commission's limited legitimacy

when compared to that of the co‐legislators, the fact that it may not always represent the Union interest, and

the latter's pragmatic losses within the EU institutional balance.

1|INTRODUCTION

Even the mostoptimistic proponentsof participatory democracyin the European Union (EU) wouldprobably hesitate to

claim that the European citizens' initiative (ECI), including its R egulation,

1

has generally been a success. The ECI has

been criticised on various grounds, including the following: the procedure is unnecessarily complicated and

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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and repro-

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© 2017 The Authors. European Law Journal Published by John Wiley & Sons Ltd

*

Lecturer in Law, University of Liverpool. I am grateful to Agustín José Menéndez, Anastasia Karatzia and the anonymous reviewers for

their valuable comments and suggestions. Earlier versions of this article (or parts thereof) were presented at the UACES Annual Con-

ference in Bilbao (2015), the Fifth Conference on European Law and Policy in Context at the University of Birmingham (2016), and the

EUSA Fifteenth Biennial Conference in Miami (2017); I thank all the participants in these events for insightful discussions and obser-

vations. The usual disclaimer applies.

1

Regulation (EU) no. 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens' initiative, OJ L 65

(hereinafter the ‘ECI Regulation’or ‘Regulation’).

Received: 6 June 2016 Revised: 18 February 2017 Accepted: 22 June 2017

DOI: 10.1111/eulj.12229

250 Eur Law J. 2017;23:250–271.wileyonlinelibrary.com/journal/eulj

formalistic;

2

the Commission's fa culty to reject a pro posal supported by at least one m illion citizens sh ould be

reconsidered;

3

an ECI both procedural ly complex and simultan eously non‐binding to the Commission cannot

increase the EU's democratic credentials;

4

the exclusion of EU residents from supporting an ECI may give rise to

problems of consiste ncy;

5

further on the procedu ral complexities, the ECI Regulation app ears to ‘penalise’certain

categories of EU nat ionals exercising free movement a nd residence rights.

6

To that end, a Resolut ion was adopted

by the European Parliament in 2015 inviting the Commission to simplify the ECI process.

7

Despite its initial hesita-

tion to amend the Regulation in 2016,

8

more recently the Comm ission has launched an online consultat ion with a

view to receiving feed back on possible amendments to the Regulat ion.

9

The ECI clearly operates under the overall aegis of the Commission. More specifically, the latter hasto make two

crucial decisions that will determine the ‘life’of a proposed ECI. First, the decision as to whether or not it will register

the initiative (what may otherwise be called the ‘admissibility stage’),

10

further to which the collection of signatures

begins, and the decision as to whether or not it will forward the proposals of a successful ECI campaign to the EU

legislature (the ‘follow‐up stage’).

11

Regarding the above‐mentioned two steps in the ECI process, so far the criticism has primarily centred on the

Commission's stance during the admissibility stage: many perhaps would favour a more relaxed approach, on the part

of the Commission, when deciding on the registration of the proposal.

12

This article takes a different approach. By jux-

taposing the provisions of theTreaties and relevant case‐law with the evolution of Europeanintegration and, more spe-

cifically, the evolution of the institutional position of the Commission, the article argues, first, that the Commission's

control during the admissibility stage is necessary, compatible with the progressive constitutionalisation of the Union's

legal order and in any event judicially reviewable; and second, that if the Commission's width of discretion at the final

stage of the ECI is viewed from the perspective of the evolution of the Commission's position within the EU architec-

ture, then such discretion cannot be easily reconciled with the Commission's limited (perceived) legitimacy, the fact

that the latter may not always represent the Union interest, and the shift in the dynamics of the relevant actors within

the decision‐making process. Thus, a claim is advanced towards the end of this contribution that attention should now

focus on the desirable ambit of discretion that the Commission should enjoy at the follow‐up stage, namely when

deciding on how to proceed with an otherwise successful, in terms of collection of signatures, ECI.

In this context,the article touches upon furtherpreferences of constitutionalnature and institutional design,which

may well extendbeyond the ECI process as such:indeed, to what extent shouldthe EU legislative processbe ‘disrupted’

by instrumentssuch as the ECI,and, more generally, howfar citizens' views shouldbe given due consideration?Regarding

the Commission's final decision, to what extent is it constitutionally, but also politically, appropriate to qualify the

Commission's legislative prerogative? The above issues necessitate an examination as to whether the Commission's

2

European Parliamentary Research Service, ‘Implementation of the European Citizens’Initiative: The Experience of the First Three

Years', European Implementation Assessment, PE 536.343 (2015).

3

Miguel Sousa Ferro, ‘Popular Legislative Initiative in the EU: Alea Iacta Est’(2007) 26 Yearbook of European Law, 355.

4

Nikos Vogiatzis, ‘Is the European Citizens’Initiative a SeriousThreat for the Community Method?’(2013) 6 European Journal of Legal

Studies, 90.

5

Michael Dougan, ‘What Are We to Make of the Citizens’Initiative?’(2011) 48 Common Market Law Review, 1807, at 1821–1822, with

reference to the case‐law regarding the right of certain third country nationals to vote for the European election s.

6

Ibid., at 1827–1828.

7

European Parliament Resolution of 28 October 2015 on the European Citizens' Initiative (2014/2257(INI)).

8

See ‘Commission unlikely to revise ECI Regulation this year’(2016), available at: www.citizens‐initiative.eu/commission‐unlikely‐to‐

revise‐eci‐regulation‐this‐year/.

9

See ‘Public consultation on the European citizens’initiative’, available at: ec.europa.eu/info/consultations/public‐consultation‐euro-

pean‐citizens‐initiative_en#about‐this‐consultation.

10

See Art. 4(2) of Regulation.

11

See Art. 10(1)(c) of Regulation.

12

Cf., e.g., European Parliamentary Research Service, above, n. 2; European Parliament Resolution, above, n. 7.

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