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

Published date01 July 2017
Date01 July 2017
Between discretion and control: Reflections on the
institutional position of the Commission within the
European citizens'initiative process
Nikos Vogiatzis*
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 caselaw 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 followup 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 colegislators, the fact that it may not always represent the Union interest, and
the latter's pragmatic losses within the EU institutional balance.
Even the mostoptimistic proponentsof participatory democracyin the European Union (EU) wouldprobably hesitate to
claim that the European citizens' initiative (ECI), including its R egulation,
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-
duction in any medium, provided the original work is properly cited.
© 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.
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 Regulationor Regulation).
Received: 6 June 2016 Revised: 18 February 2017 Accepted: 22 June 2017
DOI: 10.1111/eulj.12229
250 Eur Law J. 2017;
the Commission's fa culty to reject a pro posal supported by at least one m illion citizens sh ould be
an ECI both procedural ly complex and simultan eously nonbinding to the Commission cannot
increase the EU's democratic credentials;
the exclusion of EU residents from supporting an ECI may give rise to
problems of consiste ncy;
further on the procedu ral complexities, the ECI Regulation app ears to penalisecertain
categories of EU nat ionals exercising free movement a nd residence rights.
To that end, a Resolut ion was adopted
by the European Parliament in 2015 inviting the Commission to simplify the ECI process.
Despite its initial hesita-
tion to amend the Regulation in 2016,
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.
The ECI clearly operates under the overall aegis of the Commission. More specifically, the latter hasto make two
crucial decisions that will determine the lifeof a proposed ECI. First, the decision as to whether or not it will register
the initiative (what may otherwise be called the admissibility stage),
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 followup stage).
Regarding the abovementioned 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.
This article takes a different approach. By jux-
taposing the provisions of theTreaties and relevant caselaw 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 decisionmaking 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 followup 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
European Parliamentary Research Service, Implementation of the European CitizensInitiative: The Experience of the First Three
Years', European Implementation Assessment, PE 536.343 (2015).
Miguel Sousa Ferro, Popular Legislative Initiative in the EU: Alea Iacta Est(2007) 26 Yearbook of European Law, 355.
Nikos Vogiatzis, Is the European CitizensInitiative a SeriousThreat for the Community Method?(2013) 6 European Journal of Legal
Studies, 90.
Michael Dougan, What Are We to Make of the CitizensInitiative?(2011) 48 Common Market Law Review, 1807, at 18211822, with
reference to the caselaw regarding the right of certain third country nationals to vote for the European election s.
Ibid., at 18271828.
European Parliament Resolution of 28 October 2015 on the European Citizens' Initiative (2014/2257(INI)).
See Commission unlikely to revise ECI Regulation this year(2016), available at:
See Public consultation on the European citizensinitiative, available at:
See Art. 4(2) of Regulation.
See Art. 10(1)(c) of Regulation.
Cf., e.g., European Parliamentary Research Service, above, n. 2; European Parliament Resolution, above, n. 7.

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