The European Union provides today an array of participatory opportunities to its citizens to engage with—and
potentially influence—EU decision-making. These participatory channels exist both within and outside of the EU
policy cycle. They include agenda-setting tools, such as petitions to the European Parliament and the European
Citizens' Initiative, input mechanisms in policy formation, such as public consultations on new initiatives, as well as a
multitude of administrative actions, such as requests for access to documents to the EU institutions and complaints
to the EU Ombudsman, as well as ex post review channels, such as Lighten the Load within the Refit Platform.
these participatory channels have in common is that, regardless of their immediate aims and scattered origin, they
enable citizens to play a role “in the Union's democratic life”,
and do so beyond the electoral moment. The resulting
EU participatory toolbox breathes life into the realm of EU participatory democracy, which complements representa-
The aim of this article is to critically discuss the EU's oldest, “most widely travelled”
of EU Commission's public consultations
—in the light of the principle of political equality.
This principle has been
“constitutionalised”in the LisbonTreaty as one of the “democratic principles”
of the EU, and as such it supports the
realisation of one of the foundational “values”stemming from Article 2 TEU, namely “democracy”.
Article 9 TEU
requires EU institutions to pay “equal attention”to all citizens in the exercise of the Union's activities, including when
those participate in EU decision-making. Yet this provision largely remains a dormant clause, and has received
surprisingly little attention in EU legal scholarship.
Ten years after its introduction into the EU Treaties, the time might have come—amid growing public demand
for participation—for the awakening of Article 9 TEU and its democratic potential. In line with Beitz's theory of
this article proposes a substantive interpretation of the concept of political equality (equal
opportunities of access) as a necessary, procedural condition for the realisation of EU democracy. It submits that
such an understanding of political equality as applied to the EU participatory democracy provisions, notably those
governing public consultations, may unleash a renewed vision of the role EU institutions must play in ensuring the
concretisation of the democratic principle through participation. In particular, the article argues and calls for a new
approach aimed at re-imagining public consultations as a privileged “political opportunity structure”capable of pro-
actively catalysing and facilitating the ability of ordinary citizens—as well as diffuse, under-resourced and traditionally
overlooked groups—to be better able to gain access to and influence EU policymaking. It demonstrates that, by alter-
ing both the legal and policy framework of public consultations and their surrounding participatory environment, it is
possible to rebalance power relations within and across particular policy areas.
This approach, which can and must
Besides these formal mechanisms of participation, there exist more channels of communication that are available to EU citizens, such as letters and
complaints that can be addressed to the EU institutions and bodies any time, and that have not been formalised under EU primary or secondary law.
Article 10(3) TFEU.
Since the LisbonTreaty, the Unionderives itsdemocratic legitimacynot only from representative democracy—whichremains its founding democratic
principle (German Constitutional Court in its judgment of 30 June 2009, BVerfG, 2 be 2/08)—but also from participatory democracy. See, on this point,
e.g., A. Kutay, ‘Limits of Participatory Democracy in European Governance’,(2015) 21 European Law Journal, 803–818, 814.
H. Hauser, ‘European Union Lobbying Post-Lisbon: An Economic Analysis’,(2011) 29 Berkeley Journal of International Law, 680–709, 694.
Consultation describes a process of gathering feedback, comments, evidence or other input on a specific area of EU action from outside the Commission.
There are various forms of consultation, including internet-based public consultation open to a broad audience and targeted consultation open to the most
closely affected stakeholders. For the purposes of this article, the focus will be on the most common form of consultation, internet-based and open to a
Article 9 TEU reads: ‘In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its
institutions, bodies, offices and agencies.’
Title II TEU.
Articles 2 and 10 TEU.
On the difficulty of thinking of the concept of politicalequality beyond the confines of the nation-state, see E. Erman and S. Nasström, Political Equality in
Transnational Democracy (Palgrave Macmillan, 2013).
Ch. Beitz, Political Equality: An Essayin DemocraticTheory (Princeton University Press, 1990).
For a contrarianview, seeT. Hueller, ‘ConceptualisingDemocratic Associational Involvement in EU Decision-Making—Contributions from Contemporary
Political Theory’,(2010) 45 Acta Politica, 298–319 (arguing that the EU “constitutional framework delimits the expectations of civil society participation
because CSOs could influence neither the ethos of integration nor the policy-making”).