12 Recommendations in-depth: #1 Make the registration procedure less restrictive.
This is the first in a series of articles taking an in-depth look at each of The ECI Campaign’s 12 recommendations for building “An ECI That Works!”
#1 Make the registration procedure less restrictive.
Among the many problems organisers of European Citizens’ Initiatives (ECIs) have encountered, the Commission’s refusal to register 40% of proposed ECIs has been the most surprising and disturbing. It has limited the ECI’s impact as a tool for public dialogue and weakened it overall.
We therefore recommend that the “legal admissibility check” at registration be replaced with an “opinion on legal competence” that does not prevent an ECI from being registered. Each ECI would still need to pass three “quality control” checks before it could start.
This simplified registration procedure would ensure that all registered ECIs are serious, worthy of public discussion and the possibility of any Commission action (if they succeed) is clear. It would, at most, double the number of registered ECIs. Considering that ECI use has dwindled to just three open ECIs, this would be a good thing.
Before an ECI can be registered and collect signatures, it must first pass four checks. The first three serve as “quality control” checks – i.e., naming a citizens’ committee, respecting EU values and not being “abusive, frivolous or vexatious”. These should be kept in place.
The fourth check, known as the “legal admissibility check”, gives the Commission the power to reject ECIs that it alone deems to “fall manifestly outside the framework of its powers to submit a proposal for a legal act to implement the treaties”. In theory, this fourth check was supposed to prevent frustration when the Commission could not act on a successful ECI. In practice, it has only deepened frustration with the ECI overall.
While better legal advice and assistance from the Commission to reword ECIs would be welcome, this alone will not ensure that more ECIs are registered. Separate analyses by legal scholars Organ and Brouwer of rejected ECIs both revealed inconsistencies and narrow interpretations of “legal grey areas” by the Commission’s legal services. In some cases, such as STOP TTIP, many respected legal experts disagree with the Commission’s decision. The European Ombudsman also noted these critiques, but found no maladministration. However, six rejected ECIs are awaiting examination by the European Court of Justice (ECJ) and therefore were excluded from her examination.
Importantly, replacing the “legal admissibility check” at registration with an “opinion on legal competence” would have no impact on an ECI’s outcome. It would not weaken the ECI or change its legal nature. Registration does not obligate the Commission to act if an ECI is successful. So far, it has not. However, denial of registration does prevent public dialogue via the ECI and any hope of action.
It is important to keep in mind that 90% of all registered ECIs never collected enough supporters to merit any response from the Commission. Nevertheless, they benefited from the ECI in other ways. Their ECI campaigns also benefited the EU. For example, they led to public discussions of important issues, built cross-border cooperation and enhanced feelings of European identity and solidarity.
Each successful ECI, regardless of the “opinion on legal competence” issued at registration, would still be entitled to a public hearing in the European Parliament. The Commission would also still issue a response. This response already includes a final decision on legal competence, along with any action it proposes to take.
The Commission has significant legal flexibility in its response to a successful ECI. Decisions made at registration on legal competence have been modified at this point. Conversely, the Commission can propose an action that is within its competence, but different from what the ECI requested.
The fact that ECIs may challenge Commission registration decisions before the ECJ is of limited practical value. Appeals can take years to resolve. To ensure that the ECI’s topic is of current relevance, ECIs must collect signatures within 1 year. A procedure that lengthens an ECI campaign by 3-4 years is inconsistent with this goal.
Were the Commission to fail to respond to a successful ECI by claiming that it is “outside of its competence”, the ECI could still challenge this decision before the ECJ. A 2-3 year delay at this point would be far less damaging to the ECI, since it would already have proven that it is a serious initiative with significant public support.
In summary, ECI registration should be simplified to three “quality control” checks: citizens’ committee established, respects EU values and not abusive, frivolous or vexatious. The Commission should also issue an “opinion on legal competence” and allow the ECI’s organisers to decide if they want to continue. This simple change to the ECI Regulation 211/2011 could strengthen the ECI as a tool for public dialogue and citizen engagement and help to ensure its continued use.